The accused was convicted of two counts of first
degree murder. He had been accused of shooting C and W by the side of a
highway. C and W had been drinking with the accused in a hotel. Outside, C
and W offered a couple a ride home in W’s station wagon. W drove, and the
group first stopped at an adjacent gas station, where G, a sometime girlfriend
of C, approached the station wagon and had a conversation with C. During the
conversation, G observed a car beside the gas station, and saw the accused in
the car. She became angry with C because he was out with W rather than her,
and she walked away from the car. C got out of the car and followed her into a
laneway, where they had a further conversation. G asked C why he would not
come home with her. According to G, C replied that he had to “go and do an
Autopac scam with Robert”. She understood “Robert” to be the accused. A day
or two later, G saw a picture in the newspaper of what she believed was the car
in which she had seen the accused. The car had been found at the scene of the
murder. She phoned the police and told them she had seen the car on the night
of the murders at the gas station, with the accused in it. The Crown’s theory
was that the killing was a gang‑related execution perpetrated by the
accused. W was an unfortunate witness who was killed simply because she was in
the wrong place at the wrong time. The theory was that the accused had used an
Autopac scam as a pretext to get C out into the countryside. The trial judge
found that G’s anticipated testimony regarding the scam was admissible under
the “present intentions” or “state of mind” exception to the hearsay rule.

Two police officers visited the couple who had been
given a ride. One of the officers testified that the wife, B, had told them
that she had seen a man talking to C at the gas station. The officer testified
that B indicated that the man in one of the photographs she was shown looked like
the man whom she had seen at the gas station talking to C and who was also
“probably driving the other car”. The photograph was a photo of the accused.
Following a voir dire the trial judge ruled that the officers’
anticipated testimony was admissible pursuant to the prior identification
exception to the hearsay rule, notwithstanding the fact that B had not
testified at trial as to having seen a man talking to C at the gas station, or
as to having identified that man in one of the photographs presented to her by
the police.

The Court of Appeal, in a majority decision, upheld
the convictions. At issue here is whether the court erred in affirming the
trial judge’s decision to admit G’s testimony regarding a statement of
intention made by the deceased C, in affirming the trial judge’s decision to
admit the testimony of the police officers regarding B’s out‑of‑court
identification and in finding that the trial judge had explained the concept of
reasonable doubt to the jury in an adequate manner.

Held (McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache
JJ. dissenting): The appeal should be allowed and a new trial ordered.

Per Iacobucci, Major,
Binnie, Arbour and LeBel JJ.: Since C’s out‑of‑court statement to
G that he had to “go and do an Autopac scam with Robert”, meaning the accused,
is sought to be adduced in order to prove the truth of its contents, G’s
testimony regarding C’s statement to her is hearsay and would generally be
inadmissible as such. The “state of mind” or “present intentions” exception to
the hearsay rule as it has developed in Canada permits the admission into
evidence of statements of intent or of other mental states for the truth of
their contents and also, in the case of statements of intention in particular,
to support an inference that the declarant followed through on the intended
course of action, provided it is reasonable on the evidence for the trier of
fact to infer that the declarant did so. A statement of intention cannot be
admitted to prove the intentions of someone other than the declarant, unless a
hearsay exception can be established for each level of hearsay. The trial
judge erred in admitting C’s statement to G under the present intentions
exception and, having admitted it, in not limiting its use by the jury. The
statement contained no indicia of reliability since it was made under
circumstances of suspicion. C may have had a motive to lie in order to make it
seem that he was not romantically involved with W, and could easily point to
the accused, who was sitting nearby in a car but out of earshot, as being the
person with whom he was going to do an Autopac scam. Moreover, the trial judge
failed to instruct the jury that the statement was only admissible as evidence
regarding the intentions of C, not the accused. It is well‑established
that when a piece of evidence may conceivably be put to both proper and
improper uses, the trial judge in a criminal case must give the jury a limiting
instruction regarding the permissible inferences that may be drawn from the
evidence. In this case the trial judge did not instruct the jury on the proper
uses of C’s statement; in fact, he did the opposite by expressly inviting the
jury to use the evidence to infer the accused’s intentions. In so doing, he
clearly committed an error of law warranting reversal. Finally, when properly
limited, the evidence was more prejudicial than probative. The trial judge
erred by not considering whether the prejudicial effect of the prohibited use
of the evidence overbears its probative value on the permitted use. The
impermissible inferences that the jury might well have drawn from C’s statement
are that the accused was in the car that followed C, that the accused was alone
in the car (since C referred only to the accused), and that the accused went
with C as part of a plan to lure C to a secluded area and kill him. The
prejudicial effect of the admission of C’s statement outweighed the statement’s
probative value. The statement ought to have been excluded on this basis as
well.

In Khan, Smith, and subsequent cases,
this Court allowed the admission of hearsay not fitting within an established
exception where it was sufficiently reliable and necessary to address the
traditional hearsay dangers. This concern for reliability and necessity should
be no less present when the hearsay is sought to be introduced under an
established exception. This is particularly true in the criminal context given
the fundamental principle of justice, protected by the Canadian Charter of
Rights and Freedoms, that the innocent must not be convicted. It would
compromise trial fairness, and raise the spectre of wrongful convictions, if
the Crown is allowed to introduce unreliable hearsay against the accused,
regardless of whether it happens to fall within an existing exception. In
addition to improving trial fairness, bringing the hearsay exceptions into line
with the principled approach will also improve the intellectual coherence of
the law of hearsay. To the extent that the various exceptions may conflict
with the requirements of a principled analysis, it is the principled analysis
that should prevail. It is nevertheless important for a court to exercise a
certain degree of caution when reconsidering the traditional exceptions, which
continue to play an important role under the principled approach. In some rare
cases, it may be possible under the particular circumstances of a case for
evidence clearly falling within an otherwise valid exception nonetheless not to
meet the principled approach’s requirements of necessity and reliability. In
such a case, the evidence would have to be excluded. However, these cases will
no doubt be unusual, and the party challenging the admissibility of evidence
falling within a traditional exception will bear the burden of showing that the
evidence should nevertheless be inadmissible. The trial judge will determine
the procedure (whether by voir dire or otherwise) to determine
admissibility under the principled approach’s requirements of reasonable
necessity and reliability.

C’s statement to G was also inadmissible under the
principled approach. Since it was made under “circumstances of suspicion”, the
statement was not reliable. Nor are there any other circumstantial guarantees
of trustworthiness that could render the statement reliable. Having found that
the statement is unreliable, it is unnecessary to go on to ask whether it was
necessary or not. Since it does not fall under an existing exception either,
the courts below erred in admitting this evidence. There was no serious
argument that the error was one that could be saved by the curative proviso.

The trial judge erred in admitting the police evidence
regarding B’s out‑of‑court identification under a traditional
exception to the hearsay rule. Under the “prior identification” exception,
prior statements identifying or describing the accused are admissible where the
identifying witness identifies the accused at trial, or where the identifying
witness is unable to identify the accused at trial, but can testify that he or
she previously gave an accurate description or made an accurate
identification. These requirements are not satisfied in the circumstances of
this case. Since B did not identify the accused in court, only the second
branch of the exception could possibly be applicable. However, B did not
testify that she could not remember whether the accused was the person whom she
identified. She was not asked to compare the accused with her recollections
about the person she saw on the night of the murders. Accordingly, the
underlying circumstances of necessity required to trigger the second branch of
the traditional exception did not exist. Moreover, the police evidence went
far beyond the scope of the “prior identification” exception. The officers’
testimony went beyond simply asserting that B had identified the accused, and
provided almost the entirety of the narrative underlying the identification.
The police testimony was equally inadmissible under the principled approach.
The testimony was not necessary, since B was a witness at trial and could have
provided first‑hand evidence, had the Crown chosen to question her on the
point. Furthermore, there are strong indications that B’s identification was
unreliable. The trial judge’s cautionary instruction to the jury was
insufficient to remedy the harm caused by the admission of the evidence.

The reasonable doubt instruction given in this case
falls prey to many of the same difficulties outlined in Lifchus, and
likely misled the jury as to the content of the criminal standard of proof.
The key difficulty with this instruction is that it was not made clear to the
jury that the Crown was required to do more than prove the accused’s guilt on a
balance of probabilities. The trial judge told the jury that they could
convict on the basis of something less than absolute certainty of guilt, but
did not explain, in essence, how much less. In addition, rather than telling
the jury that the words “reasonable doubt” have a specific meaning in the legal
context, the trial judge expressly instructed the jury that the words have no
“special connotation” and “no magic meaning that is peculiar to the law”. By
asserting that absolute certainty was not required, and then linking the
standard of proof to the “ordinary everyday” meaning of the words “reasonable
doubt”, the trial judge could easily have been understood by the jury as
asserting a probability standard as the applicable standard of proof. The
trial judge did refer to the Crown’s onus and to the presumption of innocence,
and he stated that the accused should receive the benefit of any reasonable
doubt. The error in the charge is that the jury was not told how a reasonable
doubt is to be defined. As was emphasized repeatedly in Lifchus and
again in Bisson, a jury must be instructed that the standard of proof in
a criminal trial is higher than the probability standard used in making
everyday decisions and in civil trials. In this case the jury was not told
that something more than probability was required in order to convict, and
nearly all of the instructions they were given weakened the content of the
reasonable doubt standard in such a manner as to suggest that probability was
indeed the requisite standard of proof. The reasonable likelihood that the
jury applied the wrong standard of proof raises a realistic possibility that
the accused’s convictions constitute a miscarriage of justice.

Per L’Heureux‑Dubé
and Gonthier JJ. (dissenting): The following framework of analysis should be
adopted for hearsay statements. First, it must be determined whether the
statement is hearsay. Second, the trial judge should determine whether the
hearsay statement falls within an established exception to the hearsay rule.
Third, if the evidence does not fall within an established exception, the trial
judge should determine whether it would still be admissible under the
principled approach. Fourth, the trial judge maintains the limited residual
discretion to exclude evidence where the risk of undue prejudice substantially
exceeds the evidence’s probative value. Finally, once the statements are found
admissible, it is for the trier of fact to weigh the evidence and make a
determination as to the ultimate reliability of the hearsay evidence at issue.
The case‑by‑case application of the principled approach to
statements falling within accepted exceptions to the rule against hearsay
should not be countenanced. Individual cases may illuminate or illustrate the
need to modify a particular traditional exception, but every piece of evidence
that falls within a traditional exception should not be subjected to the
principled approach and the concomitant voir dire that it may entail.

While it is the duty of the courts to review common
law rules, this duty carries with it a corresponding responsibility to proceed
prudently. The usurpation of the traditional hearsay exceptions by the
principled approach is not warranted under the current state of our law. Our
jurisprudence has recognized the need to relax the hearsay rule to keep it in
step with our changing society, specifically our greater appreciation of
jurors’ abilities. However, the existing common law exceptions should be
retained. The principled necessity‑reliability analysis, while
appropriate where hearsay evidence does not fall within an established
exception to the hearsay rule, has not replaced and should not supplant the
traditional exceptions to the hearsay rule.

The traditional exceptions are built upon a
determination that a threshold of reliability is met in particular instances of
hearsay statements. Reliability under the principled approach is similarly
restricted to a threshold inquiry. In re‑evaluating a hearsay exception,
the court must ask whether some reason exists to doubt that the rationale
underlying the exception applies in certain circumstances. The scope of this
inquiry is restricted; the court should not consider every possible permutation
of indicators of reliability or unreliability. The only time a court should
entertain a challenge to an existing exception is where there are facts,
generally applicable to a class of persons, which weaken the theoretical
justification for the exception. While in principle the trial judge’s residual
discretion to exclude admissible evidence where its prejudicial effect
substantially outweighs its probative value could, in appropriate
circumstances, apply to evidence falling within an exception to the hearsay
rule, this point was not addressed in the Court of Appeal and was not argued
before this Court.

Since the Crown sought to use C’s statement to G as
proof of the truth of its contents, it is hearsay. The statement falls
squarely within the “present intentions” exception to the hearsay rule. An
exception to the hearsay rule arises when the declarant’s statement is adduced
in order to demonstrate the intentions, or state of mind, of the declarant at
the time when the statement was made. A requirement that the statement must
appear to have been made in a natural manner and not under circumstances of
suspicion should not be added. While statements of intention may be admissible
despite the fact that they refer to a joint act, the “present intentions”
exception may not be used to infer that a third party acted in accordance with
the declarant’s stated intention. The trial judge did not err in leaving C’s
statement of intention to the jury. Properly cautioned by the trial judge,
juries are perfectly capable of determining what weight ought to be attached to
such evidence, and of drawing reasonable inferences therefrom. The Crown did
not ask the jury to draw an impermissible inference, and the trial judge did
not err in instructing the jury on this issue.

With respect to B’s out‑of‑court
identification, while the trial judge may have committed an error by allowing
the police officers to testify as to the out‑of‑court
identification, any harm that such evidence may have caused was effectively
negated by the trial judge’s instructions to the jury. The harm caused by the
introduction of the evidence was minimal given other testimony that placed the
accused at the gas station before the murders. B’s statement that “he was
probably driving the other car” could not have suggested that B identified the
accused in the town where the murders took place, rather than at the gas
station. Given the trial judge’s admonition to the jury and the accused’s
admission of the marginal role that the identification evidence played, there
is no reasonable possibility that the verdict would have been different if the
alleged error had not been made.

While trial judges are now expected to follow the Lifchus
model charge, failure to do so in cases tried before Lifchus does not
constitute reversible error if the charge conveys to the jury the special
meaning attached to reasonable doubt. Despite not having the benefit of this
Court’s decision in Lifchus, the trial judge included most of the
suggested elements in his charge to the jury. The charge instructed the jurors
that a reasonable doubt must not be an imaginary or frivolous doubt; that it is
a doubt based upon reason and common sense; that it must be based on the
evidence that the jurors heard in the courtroom; and that the Crown is not
required to prove its case to absolute certainty. The trial judge’s charge was
not flawless, in that the trial judge erroneously stated that the words
“reasonable doubt” are used in their everyday, ordinary sense and have no
special legal meaning. The verdict ought not to be disturbed, however, because
the charge, when read as a whole, makes it clear that the jury could not have
been under any misapprehension as to the correct burden and standard of proof
to apply. The charge communicated clearly to the jury that they could not find
the accused guilty on a balance of probabilities. Moreover, the charge made it
clear to them that the standard of proof beyond a reasonable doubt is
inextricably linked to the presumption of innocence and that this burden never
shifts to the accused. In light of the trial judge’s compliance with the bulk
of the principles enunciated in Lifchus, the charge was not
automatically vitiated by the failure to include a specific item mentioned in Lifchus
or by the inclusion of an improper item.

Per McLachlin C.J. and
Bastarache J. (dissenting): L’Heureux‑Dubé J.’s reasons on the issues of
B’s out‑of‑court identification and the charge to the jury on
reasonable doubt were agreed with, as were her findings that the victim C’s
statement that he intended to do an Autopac scam with the accused later the
night of the murder was admissible and that the trial judge’s charge to the
jury adequately warned them of the dangers associated with this evidence.

The following principles govern the admissibility of
hearsay evidence: (1) Hearsay evidence is admissible if it falls under an
exception to the hearsay rule; (2) The exceptions can be interpreted and
reviewed as required to conform to the values of necessity and reliability that
justify exceptions to the hearsay rule; (3) Where the evidence is admissible
under an exception to the hearsay rule, the judge may still refuse to admit the
evidence if its prejudicial effect outweighs its probative value; (4) Where
evidence is not admissible under an exception to the hearsay rule, the judge
may admit it provided that necessity and reliability are established. C’s
statement that he intended to do an Autopac scam with the accused later that
night is a statement of present intention. Statements of present intention
presented for the truth of their contents (i.e., to permit inferences as to
what the person in fact did) are admissible, provided they were not made in
circumstances of suspicion. There were no circumstances of suspicion here that
precluded the trial judge from admitting C’s statement that he was doing an
Autopac scam with the accused later that night. The statement should
accordingly be admitted as evidence of what the deceased intended to do at the
time he made the statement. While a statement of joint intention cannot
support an inference as to the state of mind of the third party, in some
circumstances it can be fairly considered along with other evidence in deciding
what the third party did. C’s statement may thus be viewed as one piece of
circumstantial evidence supporting the inference that the accused was with C
later that night. It may be that where the only source of inference as to the
third party’s conduct is the statement of joint intention, it would be unsafe
to permit the jury to rely on it for that purpose. When this occurs, the jury
should be so directed. This was not such a case; the statement was merely one
of a matrix of circumstances that the jury could consider in determining
whether the accused met C later that night as C stated was their common
intention. Accordingly, the trial judge was not required to tell the jury that
they could not consider the statement on the question of what the accused in
fact did. While a more complete warning as to the danger of drawing inferences
on actual conduct from statements of joint intention would have been
preferable, the trial judge’s instruction to the jury that it was “for [them]
to decide whether the evidence of [C’s] statement about the scam goes as far as
the Crown would have [them] believe” could have left the jury in no doubt that
they must not facilely jump from C’s statement to the conclusion that C and the
accused actually met later that evening. The matter was fairly put to the jury
and no new trial is required on this ground.

Then, Edward. “Dying Declarations
Following Khan and Smith: Are They Necessarily Reliable?”. In National
Criminal Law Program: Criminal Evidence, vol. 1. Vancouver: Federation of
Law Societies of Canada, 1994, section 6.5.

Bernard Laprade and Silvie
Kovacevich, for the intervener the Attorney General of Canada.

Written submissions only by Jamie C. Klukach,
for the intervener the Attorney General for Ontario.

Alexander Budlovsky and
Marian K. Brown, for the intervener the Attorney General of British
Columbia.

The reasons of McLachlin C.J. and Bastarache J. were delivered by

1The Chief Justice
(dissenting) – I agree with Justice L’Heureux-Dubé on the issues of Ms. Ball’s
out-of-court identification and the charge to the jury on reasonable doubt. I
also agree that the victim Cook’s statement that he intended to do an Autopac
scam with the accused later the night of the murder was admissible and that the
trial judge’s charge to the jury adequately warned them of the dangers
associated with this evidence. Accordingly, I would dismiss the appeal.
However, I would deal with the hearsay issue relating to the victim’s statement
of intention somewhat differently than either of my colleagues.

2In my view, the following principles govern the admissibility of hearsay
evidence:

1.Hearsay evidence is admissible if it falls under an exception to the
hearsay rule;

2.The exceptions can be interpreted and reviewed as required to conform to
the values of necessity and reliability that justify exceptions to the hearsay
rule;

3.Where the evidence is admissible under an exception to the hearsay rule,
the judge may still refuse to admit the evidence if its prejudicial effect
outweighs its probative value;

4.Where evidence is not admissible under an exception to the hearsay rule,
the judge may admit it provided that necessity and reliability are established.

3In short, the common law exceptions to the hearsay rule remain the law,
as interpreted and updated to conform to the twin requirements of necessity and
reliability. Additionally, evidence not falling within an exception may be
admitted if the requirements of necessity and reliability are established.
This retains the certainty and predictability associated with the common law
exceptions to the hearsay rule and avoids the need to hold a voir dire when
evidence falls within an established exception. At the same time, it permits
the exceptions to evolve and evidence outside the exceptions to be admitted
where necessity and circumstantial guarantees of reliability exist. As with
all evidence, the trial judge has an overriding discretion to exclude the
evidence if its prejudicial effect outweighs its probative value.

4Applying these rules to this case, the first question is whether an
established exception to the hearsay rule applies to the evidence at issue.
The answer in this case is yes. The victim’s statement that he intended to do
an Autopac scam with the accused later that night is a statement of present
intention. Statements of present intention constitute a long-recognized
exception to the rule against admitting hearsay evidence.

5The next question concerns the ambit of the exception of statements of
present intention. Here my colleagues differ. L’Heureux-Dubé J. holds that
all statements of present intention are admissible. Iacobucci J., following
Professor Wigmore’s formulation of the exception, holds that statements of
present intention are admissible, unless made in circumstances of suspicion.
Canadian law has not yet settled this question.

6Interpreting the exception in light of the underlying requirements of
necessity and reliability, I share Iacobucci J.’s view that statements of
present intention presented for the truth of their contents (i.e., to permit
inferences as to what the person in fact did) are admissible, provided they
were not made in circumstances of suspicion. Contemporaneity is cited as
providing a guarantee of trustworthiness for statements of present intention.
In the normal course, the words are contemporaneous with a present intention to
do that act. If a person as she heads out the door says, “I’m going to the store”,
there is every reason to believe that is what she intends to do. This flows
from the fact that in the great majority of cases, people making such
statements actually intend to do the indicated act. The statement of intention
is admitted as a statement of mental condition: inferences that may be drawn as
to whether the intended act occurred are another matter: Wigmore on Evidence,
vol. 6 (Chadbourn rev. 1976), at §1725, p. 139; R. J. Deslisle: “R. v. Smith:
The Relevance of Hearsay” (1991), 2 C.R. (4th) 260, at p. 264.

In the ordinary course of things, it was the usual information that a
man about leaving home would communicate, for the convenience of his family,
the information of his friends, or the regulation of his business. At the time
it was given, such declarations could, in the nature of things, mean harm to no
one; he who uttered them was bent on no expedition of mischief or wrong, and
the attitude of affairs at the time entirely explodes the idea that such
utterances were intended to serve any purpose but that for which they were
obviously designed. . . . At the time the words were uttered. . . the
reference to the companion who was to go with him was nothing more, as matters
then stood, than an indication of an additional circumstance of his going.

8Sometimes, however, statements of intention may not reflect the actual
present intention of the speaker. The circumstances may suggest that the
speaker had reason to lie about his or her intentions. In such cases, the
circumstantial guarantee of trustworthiness that underlies the exception
disappears. This is why Wigmore held that the exception did not apply where
the circumstances cast suspicion on whether the statement of intention
represented the speaker’s actual intention. Where circumstances of suspicion
exist, the presumption of reliability that normally underlies the exception is
removed, and it would be inconsistent with the principles underlying the exceptions
to the hearsay rule to admit the evidence. (Given the presumption of
reliability underlying the exception, it falls to the person opposing the
evidence to show circumstances of suspicion.) For this reason, I agree with
Iacobucci J. that the statements of present intention are admissible, absent
circumstances of suspicion.

9This brings us to the question of whether there were circumstances of
suspicion here that precluded the trial judge from admitting the victim’s
statement that he was doing an Autopac scam with the accused later that night.
The majority of the Court of Appeal held there were not. Iacobucci J., by
contrast, finds there were. I find myself in agreement with the Court of
Appeal. The victim Cook, who had another woman and two other people in his
car, encountered his girlfriend at a service station. They conversed. He told
her that he was going to do an Autopac scam with the accused later that night.
They parted. The question is whether the circumstances of this encounter cast
suspicion on whether the victim’s statement represented his actual intention at
the time he spoke. It is argued that the circumstances suggest that he may
have made up the Autopac scam story to explain or offset the presence of
another woman in his car. It is not clear to me how the statement that he
intended to do an Autopac scam with the accused explains why another
woman would be in the car with him. Nor is it clear how the statement
countered the suggestion that the victim was romantically involved with the
woman in the car. It begs the question, “If you are doing an Autopac scam with
someone else later tonight, why are you with this woman?” If the victim had
said he intended to do the scam with the woman, it might have attracted
suspicion as to whether it represented his actual intentions. But that is not
what occurred. Accordingly, I would admit the statement as evidence of what
the deceased intended to do at the time he made the statement.

10Iacobucci J. argues that the statement is not admissible for a second
reason -- because the statement involves the intention to do a joint act with a
third person, the accused. In my view, this goes not to admissibility, but to
the inferences which may be drawn from the statement. However, my colleague
goes on to argue that no inference as to what the accused did can be drawn from
the statement, and that the jury should have been so instructed.

11It is common ground that the trial judge must give the jury appropriate
instructions on how the jury may use hearsay evidence: R. v. Rockey,
[1996] 3 S.C.R. 829, at para. 38. It is also beyond dispute that if failure to
give such instructions renders the trial unfair, a new trial must be ordered.

12Two issues arise: (1) Should the trial judge have told the jury they
could not draw an inference from Cook’s statement as to the accused’s conduct?
and (2) If not, should the trial judge have specifically warned the jury about
the danger of making such an inference?

13On the first issue, my colleagues suggest that a jury can never infer
what a person other than the speaker did from a statement of joint intention.
I would not state the matter so categorically. Certainly, such a statement
cannot support an inference as to the state of mind of the third party.
However, in some circumstances the statement of joint intention can be fairly
considered along with other evidence in deciding what the third party did.
The declarant’s state of mind may be one piece of evidence amongst others for
the jury to consider in determining what happened. Viewed thus, Cook’s
statement may be viewed as one piece of circumstantial evidence supporting the
inference that Starr was with the deceased later that night. The cases to which
we have been referred, other than some American cases, do not go so far as to
say that statements of joint intention can never be used on the issue of what
the third party did.

14This said, it may be that where the only source of inference as to the
third party’s conduct is the statement of joint intention, it would be unsafe
to permit the jury to rely on it for that purpose. When this occurs, the jury
should be so directed. In my opinion, this was not such a case; the statement
was merely one of a matrix of circumstances that the jury could consider in
determining whether the accused met Cook later that night as Cook stated was
their common intention. Accordingly, I conclude that the trial judge was not
required to tell the jury that they could not consider the statement on the
question of what the accused in fact did.

15The second issue is whether the trial judge in any event should have
specifically warned the jury about the danger of using the statement of joint
intention as evidence on the issue of what the accused did. To answer this
question, we must return to what the trial judge said. The Crown had suggested
that the statement of joint intention supported an inference that the accused
proposed the scam to the victim as a way to get the victim in an isolated
place. After this, the trial judge told the jury that it was “for [them] to
decide whether the evidence of Cook’s statement about the scam goes as far as
the Crown would have [them] believe”.

16An express instruction about the danger involved in drawing inferences
from one person’s statement of present intention to what another person did is
generally desirable. However, the issue on appeal is whether the trial judge’s
instruction in fact conveyed to the jury the need to be careful and not to jump
facilely from Cook’s statement that he was doing an Autopac scam with the
accused that night to the conclusion that the accused in fact met Cook at the
proposed site of the scam. I am satisfied that the trial judge’s direction
accomplished this. The trial judge told the jury that they could use the
statement for a hearsay purpose, i.e., in deciding what the accused did. He
went on to suggest that they might not wish to draw this inference,
notwithstanding the Crown’s invitation. The jury thus knew the inference was
for them and them alone and that it was one they must carefully consider.
While a more complete warning as to the danger of drawing inferences on actual
conduct from statements of joint intention would have been preferable, I am
satisfied that the trial judge’s instruction in this case could have left the
jury in no doubt that they must not facilely jump from Cook’s statement to the
conclusion that Cook and the accused actually met later that evening. The
matter was fairly put to the jury and no new trial is required on this ground.
On this view, either no error was committed, or if it was, it does not
constitute reversible error.

17I conclude that the victim Cook’s statement that he intended to do an
Autopac scam with the accused was admissible as evidence of the victim’s
present intention, and that the trial judge’s instructions sufficed in the
circumstances to obviate the danger of impermissible inferences.

18In the result, I agree with L’Heureux-Dubé J. that the appeal
should be dismissed.

The reasons of L’Heureux-Dubé and Gonthier JJ. were
delivered by

L’Heureux-Dubé J. (dissenting) --

I.Introduction

19The appellant was convicted at trial before a judge and jury on two
counts of first degree murder. He was convicted of killing Bernard (Bo) Cook
and Darlene Weselowski by shooting them by the side of a provincial highway on
the outskirts of Winnipeg in the early morning hours of August 21, 1994. The
Manitoba Court of Appeal ((1998), 123 C.C.C. (3d) 145) upheld the verdict,
dismissing the grounds of appeal raised before us. While this case originally
came to us as of right, the Court ordered a re-hearing of the appeal and
invited submissions on the scope of the present intentions exception to the
hearsay rule and on the application of the “principled approach” as set out in R.
v. Khan, [1990] 2 S.C.R. 531, and subsequent cases to the traditional
exceptions to the hearsay rule. This case also requires us to explicate and
apply the principles regarding a charge to the jury on reasonable doubt as set
out by this Court in R. v. Lifchus, [1997] 3 S.C.R. 320.

20I have had the benefit of reviewing the reasons of Iacobucci J. and I am
unable to agree with his analysis of the issues. While we are both in
agreement that the principled approach applies to all hearsay statements, we
have very different conceptions as to what this entails.

21Our difference of opinion can be reduced to two crucial points. First,
whereas Iacobucci J. would hold that the principled approach must “prevail”
over the traditional exceptions to the hearsay rule, I would not endorse such
an approach because I believe that it invites challenges to every piece of
evidence that falls under a traditional exception. I would hold that the
traditional exceptions endure, subject to their categorical re-examination
under the principled approach should the issue arise in a proper case. Second,
beneath this first disagreement lie two very different conceptions of what the
threshold reliability analysis under the principled approach entails. As
demonstrated by his analysis of the hearsay statements in this case, Iacobucci
J. would require the trial judge to determine the credibility of the hearsay
declarant at the threshold stage. I believe that such determinations encroach
on the trier of fact’s determination of ultimate reliability. Moreover, I
believe that the traditional exceptions already incorporate a finding of
threshold reliability and the trial judge need not engage in the type of
reliability determination favoured by Iacobucci J. on a “threshold” inquiry of
evidence that falls within a traditional exception to the hearsay rule.

22The end result of Iacobucci J.’s approach is an open invitation to
challenge previously admissible hearsay evidence. I do not believe that this
approach flows from our previous decisions in Khan, supra, and R.
v. Smith, [1992] 2 S.C.R. 915. These cases were not about the exceptions
to the hearsay rule but about expanding the scope of admissible evidence beyond
the boundaries of the traditional categories. They accepted the traditional
exceptions as a given but sought other means to admit reliable and necessary
evidence through the adoption of a “principled approach” to hearsay. I fear
that to adopt the course charted by Iacobucci J. would sacrifice the
experience, certainty and predictability of centuries of jurisprudence in the
name of a quest for purported intellectual coherence that is untested by the
forges of our courtrooms.

23On the issue of the jury charge on reasonable doubt, the Lifchus
standard provides guidelines for trial judges rather than an iron-clad roster
of proscriptions and prohibitions. I do not read Lifchus as providing
that the inclusion or exclusion of certain phrases automatically vitiates a
jury charge. Instead, I read Lifchus as mandating that a charge be
examined in its entirety to determine whether the jury properly understood the
concept of proof beyond a reasonable doubt. I am of the opinion that the jury
charge in this case properly communicated this concept to the jury.

24My colleague Iacobucci J. has adequately set forth the factual
background and judicial history of this case. In dealing with the individual
grounds for appeal, I will elaborate when necessary.

II. Analysis

A. The
Admissibility of Cook’s Statement

(1)
Introduction and Summary

25Approximately one hour before he was murdered, Bernard (Bo) Cook spoke
with Jodie Giesbrecht and told her that he had to “go and do an Autopac scam
with Robert” (the appellant). The trial judge admitted Ms. Giesbrecht’s
testimony as to what Mr. Cook told her the night he and Darlene Weselowski were
murdered. The appellant challenges the admission of this statement on the
grounds that it is inadmissible hearsay.

26Iacobucci J. and I disagree regarding the admission of this statement as
an exception to the rule against hearsay for declarations of “state of mind” or
“present intentions” as recognized by this Court in Smith, supra.
For ease of reference, I will refer to this exception as the “present
intentions” exception as that term best encapsulates the type of statement at
issue before us. Several points of disagreement arise in the course of our
analysis of this statement. The first is the scope of this exception; the
second is the proper use to which the statement can be put by the jury.

27The third level of disagreement involves the question of how to analyze
the hearsay statement. Should it be examined under the traditional exceptions
to the hearsay rule or under the new principled approach developed by this
Court in Khan and subsequent cases? This question in turn requires us
to determine the present status of the traditional exceptions in light of and
in relationship to the principled approach.

28I wish to articulate clearly my position on the state of hearsay law
after Khan and its progeny. First, I do not believe that Khan “prevails”
over the traditional exceptions to the hearsay rule. The effect of Iacobucci
J.’s analysis is to reduce these exceptions to mere reference points that
provide little more than a convenient launching pad for the application of the
principled approach to previously accepted exceptions to the hearsay rule.
Second, I would not follow Iacobucci J.’s suggested approach because in my
mind it impermissibly shifts responsibility from the trier of fact onto the
judge. I believe that this framework directly contradicts the underlying
essence of the principled approach and the thrust of hearsay reform in the
common law world over the last 30 years. An overly strict view of hearsay is
inconsistent with our desire to provide the trier of fact with more, rather
than less, evidence. I of course recognize that some restrictions on the
admissibility of evidence are nonetheless necessary, for both judges and
juries.

29I would adopt the following framework of analysis for hearsay
statements. First, it must be determined whether the statement is hearsay.
Second, the trial judge should determine whether the hearsay statement falls
within an established exception to the hearsay rule. If it does, the evidence
is admissible. Third, if the evidence does not fall within an established
exception, the trial judge should determine whether it would still be
admissible under the principled approach. Fourth, the trial judge maintains
the limited residual discretion to exclude evidence where the risk of undue
prejudice substantially exceeds the evidence’s probative value. Finally, once
the statements are found admissible, it is for the trier of fact to weigh the
evidence and make a determination as to the ultimate reliability of the hearsay
evidence at issue. The Chief Justice essentially adopts this framework in
para. 2 of her reasons.

30In addition, I would allow for the re-evaluation, in a proper case, of a
traditional exception under the principled approach. That is to say, I believe
that the principled approach may be applied to reconsider the reliability and
necessity of the class of statements that are included in a categorical
exception to the rule against hearsay. I would not countenance the
case-by-case application of the principled approach to statements falling
within accepted exceptions to the rule against hearsay. Individual cases may
illuminate or illustrate the need to modify a particular traditional exception,
but every piece of evidence that falls within a traditional exception should
not be subjected to the principled approach and the concomitant voir dire that
it may entail. To do so would unnecessarily complicate the trial process and
sacrifice experience, certainty and predictability in the name of the vague and
uncertain mantra of “principle”.

(2) Hearsay Reform

31The rule against hearsay developed at the same time as the modern form
of trial and is associated with a deep-seated distrust of the jury system: Cross
on Evidence (7th ed. 1990), at p. 510. It is premised on a belief that the
jury will erroneously assess the probative value of evidence and the retention
of the rule reflects continued suspicions about jury deliberations: J. Sopinka,
S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed.
1999), at p. 176. The rule against hearsay is “founded on a lack of faith in
the capacity of the trier of fact properly to evaluate evidence of a
statement”: Smith, supra, at p. 935. The modern trend to
reform the rules of evidence in general and the hearsay rules in particular
constitutes a sharp break from this distrust of the jury. As the Law Reform
Commission of Canada explained in its 1975 Report on Evidence, at p. 5:

. . . at least 95% of criminal cases in Canada are now tried by a judge
alone, so there is no need for all the precautions about what is to be allowed
in evidence now. Judges are experienced in weighing evidence and, in any
event, they have to learn of disputed evidence to determine whether it is
admissible or not. Even when there is a jury, the situation is profoundly
different from the past. Jurors today are far more sophisticated and better
educated than in the past. [Emphasis added.]

We have
recognized these changes, commenting in R. v. Levogiannis, [1993] 4
S.C.R. 475, at p. 487, that “the recent trend in courts has been to remove
barriers to the truth-seeking process”. This Court has taken a flexible
approach to the rules of evidence, “reflect[ing] a keen sensibility to the need
to receive evidence which has real probative force in the absence of overriding
countervailing considerations”: R. v. Seaboyer, [1991] 2 S.C.R. 577, at
p. 623. In the specific context of hearsay evidence, Lamer C.J. speaking for a
unanimous Court in Smith, supra, at p. 932, explained that “[t]he
movement towards a flexible approach was motivated by the realization that, as
a general rule, reliable evidence ought not to be excluded simply because it
cannot be tested by cross-examination.” Our motivation in reforming the rules
of evidence has been “a genuine attempt to bring the relevant and probative
evidence before the trier of fact in order to foster the search for truth”: Levogiannis,
supra, at p. 487. These principles must guide all of our evidentiary
reform endeavours.

32Our reform of the hearsay rules began in Ares v. Venner, [1970]
S.C.R. 608, when we refused to follow the House of Lords’ position that the
hearsay rule was frozen in time subject to reform only through the initiative
of Parliament: see Myers v. Director of Public Prosecutions, [1965] A.C.
1001. In Ares, at p. 624, we adopted the minority position of Lord
Donovan in Myers that “[t]he common law is moulded by the judges and it
is still their province to adapt it from time to time so as to make it serve
the interests of those it binds.” What is at issue in this appeal is whether Khan
and its progeny have followed Lord Donovan’s imperative to “adapt” the common
law from time to time or whether this Court has embarked upon an entirely
different course and revolutionized the law of hearsay in this country.

33In Khan, supra, McLachlin J. (as she then was), writing
for a unanimous Court, held that hearsay evidence of a child’s statement on
crimes committed against the child should be received, provided that the
guarantees of necessity and reliability are met. The effect and reach of Khan
were unclear to many with some commentators opining that the decision was
analogous to Ares, supra, in creating a new categorical exception
to the hearsay rule. See, e.g., D. Rowsell, “Necessity and Reliability: What
is the Impact of Khan on the Admissibility of Hearsay in Canada?”
(1991), 49 U.T. Fac. L. Rev. 294, at p. 295. However, this interpretation
of Khan was expressly disavowed by this Court in Smith, supra.

34In Smith, at p. 932, Lamer C.J., speaking also for a unanimous
Court, stated that “Khan should not be understood as turning on its
particular facts, but, instead, must be seen as a particular expression of the
fundamental principles that underlie the hearsay rule and the exceptions to
it”. At p. 930, he had said:

The principled basis of the hearsay rule, and its exceptions, was thus
understood by commentators on the common law of evidence early in this
century. The decision of this Court in Khan, therefore, should be
understood as the triumph of a principled analysis over a set of ossified judicially
created categories.

Later at p.
932, Lamer C.J. characterized Khan as signalling a departure “from a
view of hearsay characterized by a general prohibition on the reception of such
evidence, subject to a limited number of defined categorical exceptions” and
moving towards “an approach governed by the principles which underlie the rule
and its exceptions alike”. Finally, at p. 933, Lamer C.J. stated that Khan “signalled
an end to the old categorical approach to the admission of hearsay evidence.
Hearsay evidence is now admissible on a principled basis, the governing
principles being the reliability of the evidence, and its necessity.”

36The attempts at explanation made in Smith and B. (K.G.) left
open the question of where the traditional exceptions stood in the aftermath of
Khan and its progeny. Courts and commentators remained uncertain over
the application of the principled approach to the traditional categories.

(3) Relationship Between the Principled Approach
and the Hearsay Exceptions

37Iacobucci J. takes the position that the traditional hearsay exceptions
should not automatically be applied without consideration of the principled
approach. He states that in the event of a conflict between the principled
approach and the existing exceptions, “it is the principled approach that must
prevail” (para. 155). I do not quarrel with this idea but I do take issue with
what Iacobucci J. asserts that this entails. At bottom, I read Iacobucci
J.’s approach as diminishing the role of the traditional exceptions in the
hearsay analysis. I do not believe that such an approach is warranted either
by our jurisprudence or by the underlying rationale of the principled approach.

38It is possible to identify five different interpretations of Khan and
its progeny: (1) Khan created a particular new exception to the rule
against hearsay for child testimony; (2) Khan provides the basis for
creating new categorical exceptions for necessary and reliable evidence; (3) Khan
created a residual exception for necessary and reliable evidence, leaving
the traditional exceptions intact; (4) Khan not only permits the
admission of evidence which does not fall within the existing exceptions but
allows courts to revisit a traditional exception to determine whether it can
still be justified on the basis of necessity and reliability; (5) Khan abolishes
the traditional exceptions and supplants them with the principled approach of
necessity and reliability which are applied on a case-by-case basis. I will
examine each possibility in turn.

39The first interpretation of Khan can be dealt with quickly. The
reading of Khan that argued that it created a narrow exception for
children’s testimony was expressly disavowed by this Court in Smith, supra,
at p. 932, and B. (K.G.), supra, at p. 798.

40The second interpretation of Khan views “necessity” and
“reliability” as the basis for creating new categorical exceptions. See
Thompson, supra, at p. 284: “Despite the language of ‘principled
flexibility’, two of the three cases so far have led to the creation of new categorical
exceptions: child abuse hearsay in Khan and some prior inconsistent
statements in K.G.B.” (emphasis in original). In B. (K.G.), at
p. 798, we similarly expressly repudiated this possibility: “the decisions in Khan
and Smith established that Canadian courts will no longer carve out
categorical ‘exceptions’”.

41The third interpretation of Khan sees it as creating a new
residual exception for “necessary” and “reliable” evidence that does not fall
within the traditional categories. This was first expressed by M. T.
MacCrimmon in “Developments in the Law of Evidence: The 1990-91 Term -- Social
Science, Law Reform and Equality” (1992), 3 Supreme Court L.R. (2d) 269,
at p. 322, where she stated that Khan “created a residual exception to
the hearsay rule similar to that in the Federal Rules of Evidence”. This
interpretation is also adopted by Sopinka, Lederman and Bryant, supra,
at p. 191. By far, this is the most widely accepted interpretation of Khan.
See McCrea, supra, at p. 208; R. Prithipaul, “Observations on the
Current Status of the Hearsay Rule” (1997), 39 Crim. L.Q. 84, at p. 92;
Thompson, supra, at p. 284; D. Oleskiw, “Recent Developments in the Law
of Hearsay” (1994), 1 Crown’s Newsletter 37, at p. 38; M. B. Blok, “The
Changed Law of Hearsay Evidence (Or, “Hearsay Today, Gone Tomorrow”)” (1993),
51 Advocate 675, at p. 685; H. Stewart, “Prior Identifications and
Hearsay: A Note on R. v. Tat” (1998), 3 Can. Crim. L. Rev. 61, at
p. 64; L. Stuesser, “R. v. B. (K.G.): Prior Inconsistent Statements as
Truth” (1991), 5 C.R. (5th) 373, at p. 378.

42The fourth possibility is that Khan permits the re-evaluation of
the traditional exceptions on a categorical basis. This was suggested by Marc
Rosenberg, before his appointment to the bench, in the article “B. (K.G.)
— Necessity and Reliability: The New Pigeon-holes” (1993), 19 C.R. (4th) 69, at
p. 71, where he said, “[m]oreover, I think that not only is it possible to
admit evidence which does not fall within the existing exceptions but it must
also be open to the courts to revisit any established exception to determine
whether that exception can still be justified on the basis of necessity and
reliability.” For an application of this approach see Rowsell, supra,
at pp. 304-8 (re-examining dying declarations and spontaneous declarations in
light of Khan). Rosenberg explains the basis for his assertion as
follows (at pp. 80-81):

. . . the reason which justifies an existing exception may in time be
found to be wanting. The exceptions were created as the courts from time to
time applied common sense and experience, but ideas which seemed reasonable in
the 19th century may appear questionable in the late 20th century.

I would accept
this approach as dictated by the tenets embodied in the principled approach.
Yet, as I will explain below, I have a radically different conception than
Iacobucci J. of what this entails.

43The final possibility is that Khan and its progenyabolishthe traditional exceptions and replace them with a case-by-case
determination of reliability and necessity. That the passages previously
quoted from Smith, supra, may provide this impression is
explained by Professor Schiff in Evidence in the Litigation Process (4th
ed. 1993), vol. 1, at p. 660:

Upon even a careful reading of Smith, the
court might appear to abolish the existing hearsay exceptions, leaving in their
place the judge’s authority to admit any item of hearsay evidence shown to be
“necessary” and “reliable” in the particular circumstances. The existing
exceptions are nonetheless alive and well. . . .

InSopinka,
Lederman and Bryant, supra, at p. 193, the authors state that
“[t]here is no suggestion in the cases that the court was countenancing the
exclusion of hearsay which would be otherwise admitted through one of the
recognized exceptions.” Furthermore, in B. (K.G.), supra, Lamer
C.J. speaking for a majority of the Court, stated (at p. 798): “While the
decisions in Khan and Smith established that Canadian courts will
no longer carve out categorical ‘exceptions’, the new approach shares the same
principled basis as the existing exceptions.” I take this statement as
affirming the continued existence of the traditional exceptions while laying
the groundwork for the application of the principled approach to new
developments. See McCrea, supra, at p. 208. Moreover, we have
admitted evidence based solely on the traditional exceptions in cases
subsequent to Khan: see R. v. Terry, [1996] 2 S.C.R. 207, at
para. 28. In that case, with no discussion of the principled approach, we
stated: “An admission against interest made by the accused is admissible as a
recognized exception to the hearsay rule, provided that its probative value
outweighs its prejudicial effect.”

44I am able to find only a single author who proposes sweeping aside the
existing exceptions in the name of the principled approach. However, that
author is hardly complimentary in his assessment of this approach. In“The Supreme Court of Canada and Hearsay: The Relevance for
Arbitration”, in W. Kaplan, J. Sack and M. Gunderson, eds., Labour Arbitration
Yearbook 1994-95, 123, Professor D. M. Paciocco states (at p. 139):

In summary, the Supreme Court of Canada has
rejected the traditional approach to identifying admissible hearsay. It has
replaced it with an ad hoc or case-by-case assessment in which the
admission of hearsay evidence is determined as a matter of judicial discretion,
according to the general principles of “necessity” and “reliability.”

Most of the
other commentators assert that the traditional categories have not been
replaced by the principled approach. See McCrea, supra, at p. 208
(stating that “in B. (K.G.), decided shortly after Smith, the
Court clarified that the established hearsay exceptions remained very much
intact”); Thompson, supra, at p. 284 (“Smith does not sweep away
the existing exceptions”) and at p. 291 (“It is hard to believe that the real
intent of Smith was to wipe out the whole structure of hearsay
exceptions, constructed over the years by the common law.”); P. B. Carter,
“Hearsay: Whether and Whither?” (1993), 109 L.Q.R. 573, at p. 579 (“R.
v. Smith should be seen as supplementing and developing, rather than as
totally replacing, the traditional framework of the common law”); Stewart, supra,
at p. 64 (“Before reaching the principled approach, the Court must be satisfied
that the statement is not admissible under any existing exception to the rule
against hearsay.”); A. L.-T. Choo, Hearsay and Confrontation in Criminal
Trials (1996), at p. 169.

45It is the duty of the courts to review common law rules and as
recognized by the Law Reform Commission of Canada in its Report on Evidence,
supra, at p. 69, the hearsay rule is the most characteristic rule of our
system of judge-made rules of evidence. However, the duty to review the common
law carries with it a corresponding responsibility to proceed prudently. This
Court has limited changes in the common law to those which are “slow and
incremental” rather than “major and far-reaching”: Watkins v. Olafson,
[1989] 2 S.C.R. 750, at p. 760, per McLachlin J. This Court must
restrict reforms to only “those incremental changes which are necessary to keep
the common law in step with the dynamic and evolving fabric of our society”:
R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670, per Iacobucci J.
The adoption of the principled approach in Khan was based on these
calculations and, similarly, any extension of it must be evaluated in terms of
the above considerations.

46I do not see the usurpation of the traditional exceptions by the
principled approach as warranted under the current state of our law. After
studying the issue for several years, the Law Reform Commission of Canada in
its 1975 Report on Evidence concluded (at p. 5): “Many of the existing
rules are sound and well-tested, and have the advantage of being familiar to
the profession. We would retain these.” Similarly, the Ontario Law Reform
Commission in its 1976 Report on the Law of Evidence concluded (at p.
15): “In our view, the general exclusionary rule now in effect
should be retained, together with the existing common law exceptions. The
hearsay rule should, however, be relaxed by way of further, codified,
exceptions.” Our jurisprudence has recognized the need to relax the hearsay
rule to keep it in step with our changing society, specifically our greater
appreciation of jurors’ abilities. However, I am not convinced that changes
have occurred that are so substantial as to vitiate the general conclusions of
these commissions which of course studied these issues in far greater detail
than we can.

48The reforms that Iacobucci J. proposes will have “major and
far-reaching” effects on the common law and the trial process and therefore
should be avoided: see Watkins, supra, at p. 760. Within
Iacobucci J.’s approach, evidence that falls under a traditional exception
would be doubly challenged. First, while according to Iacobucci J. evidence
falling within a traditional exception is presumptively admissible (para. 212),
it is open to revisit the exceptions themselves to re-interpret them in a
manner consistent with the requirements of necessity and reliability (para.
213). Second, IacobucciJ. asserts that “[i]n some rare cases, it may
also be possible under the particular circumstances of a case for evidence
clearly falling within an otherwise valid exception nonetheless not to meet the
principled approach’s requirement of necessity and reliability” (para. 214).I fear that this invitation will create further uncertainty in the law as
lawyers being lawyers will be quick to claim that their case is the “rare” one
of which Iacobucci J. speaks. Iacobucci J. does not specify how trial judges
are to deal with these rare cases, stating that they will determine the
procedure “whether by voir dire or otherwise” (para. 214), but I
think it is safe to assume that trial judges will turn to the procedure
familiar to them and mandated by our previous jurisprudence: the voir dire
(see B. (K.G.), supra).

49In any event, voir dire or not, this approach would require an
in-depth re-evaluation of the admissibility of evidence already found to fall
within an exception to the hearsay rule. The voir dire is merely the
most formal mode of conducting this inquiry. With or without a voir dire,
the double analysis mandated in every case of hearsay evidence on this approach
would inevitably and unnecessarily complicate and lengthen trials.

50It is generally acknowledged that the principled approach will result in
lengthening trials as litigation over the admissibility of evidence becomes
more common. See Schiff, supra, at p. 661; Thompson, supra,
at p. 295; Prithipaul, supra, at p. 92; Blok, supra, at p. 685.
See also Rosenberg, “B. (K.G.) -- Necessity and Reliability: The New
Pigeon-holes”, supra, at p. 75. In adopting the principled approach to
hearsay evidence not falling within an established exception, we have chosen
this course in the name of the search for truth and because of confidence that
juries will be able to accurately weigh the quality of the evidence before
them. However,

[t]aking away all of the rules and replacing them with necessity and
reliability makes the role of the trial judge that much more difficult. . . .
Trial judges simply do not have the luxury to spend hours, let alone days,
pondering the reliability of a particular piece of evidence, an issue normally
reserved to the fact-finding phase of the trial. What is required is a set
of rules which can be applied to most situations. [Emphasis added.]

(M. Rosenberg, “Developments in the Law of Evidence: The 1992-93 Term
-- Applying the Rules” (1994), 5 Supreme Court L.R. (2d) 421, at p.
487.)

51I would conclude that the principled necessity-reliability analysis,
while appropriate where hearsay evidence does not fall within an established
exception to the hearsay rule, has not replaced and should not supplant the
traditional exceptions to the hearsay rule. I am not persuaded by Iacobucci
J.’s attempt to split the difference and hold that the principled approach
applies to the evidence that falls within a traditional exception but that a voir
dire may only sometimes be necessary. Either the principled approach
applies to the traditional exceptions or it does not. If it does, then a voir
dire is required to consider the admissibility of such evidence. See B.
(K.G.), supra. See also Thompson, supra, at p. 295 (“A voir
dire is required, sometimes a complicated one under the residual exception.”).
If the traditional exceptions endure, as I believe they should, then no voir
dire is required.

52The source of the disagreement between my colleague Iacobucci J. and me
can be traced to variant understandings of threshold reliability inquiry under
the principled approach. The traditional exceptions are built upon a
determination that a threshold of reliability is met in particular instances of
hearsay statements. Reliability under the principled approach is similarly
restricted to a threshold inquiry: B. (K.G.), supra, at p.
787. In R. v. Hawkins, [1996] 3 S.C.R. 1043, this Court explained the
nature of the reliability analysis (at para. 75):

The criterion of reliability is concerned with
threshold reliability, not ultimate reliability. The function of the trial
judge is limited to determining whether the particular hearsay statement
exhibits sufficient indicia of reliability so as to afford the trier of fact a
satisfactory basis for evaluating the truth of the statement. More specifically,
the judge must identify the specific hearsay dangers raised by the statement,
and then determine whether the facts surrounding the utterance of the statement
offer sufficient circumstantial guarantees of trustworthiness to compensate for
those dangers. The ultimate reliability of the statement, and the weight to be
attached to it, remain determinations for the trier of fact.

53Although it may appear that the above pronouncement conflicts with
certain statements made in Khan, supra, and Smith, supra,
it is possible to reconcile the approaches taken in all of these cases. In Khan,
although McLachlin J. spoke in terms of the complainant not having a
reason to lie, in essence, the recognition there was that children of such a
tender age do not have a reason to lie about sexual subjects. Moreover, it is
almost impossible for a child of such a tender age to have knowledge about the
functioning of male anatomy in that way, rendering statements made by people in
that class inherently reliable. Similarly, in Smith, one can see how
people who are in need of assistance generally, as a class of people, have no
reason to lie when they say that they need help. It is certainly true that
these facts were present in the individual cases in Khan and Smith,
but the rule would be applicable to a larger class of persons.

54Threshold reliability exists where there is a circumstantial guarantee
of trustworthiness. It does not mean that the hearsay is true or even likely
to be true, but rather it asks whether the circumstances are such that there is
sufficient reliability for the hearsay to be properly assessed by the jury.
The traditional hearsay exceptions are based on a determination of threshold
reliability: Smith, supra, at pp. 929-30. These exceptions
have historically been founded on truisms common to classes of people or
common to circumstances applicable to all people. There is no reason why that
should not continue to be the case.

55I acknowledge that some of the existing exceptions may require fine
tuning. It may be that society has changed in such a manner that the rationale
for the exception no longer applies. And, there may be circumstances which
could arise in an individual case which challenge the inherent reliability that
underpins a hearsay exception. However, the court must differentiate between
individual circumstances that go to the weight of the evidence (such as motive
to lie or other extraneous circumstances unique to the individual) and
circumstances that are properly considered at the threshold stage.

56In re-evaluating a hearsay exception, the court must ask whether some
reason exists to doubt that the rationale underlying the exception applies in
certain circumstances. The scope of this inquiry is restricted; the court
should not consider every possible permutation of indicators of reliability or
unreliability. To do so would result in the excision of the categories and
abolition of their utility. Rather, the questions should always be: Is there
something wrong with the exception itself? Should the exception be
inapplicable in some circumstances?

57The only time when a court should entertain a challenge to an existing
exception is where there are facts, generally applicable to a class of persons,
which weaken the theoretical justification for the exception. If facts arise
which demonstrate that within an exception, we no longer think that statements
made by a particular class of persons are inherently reliable, then to a
certain extent, the rationale for the exception has been displaced and the
exception must be modified to exclude people in such circumstances. For
example, it may be that a court may wish to reconsider the dying declaration
under certain circumstances such as when a dying person is under the influence
of powerful drugs. Another exemption that may benefit from re-examination is
the business records exception where the records are written by persons who are
not disinterested parties. Both of these examples reflect particular
circumstances under which reliability may be questioned for all people in such
a situation. I believe that this approach will force the courts to reconsider
the exceptions only where a problem exists with the theoretical foundation of
the exception. Furthermore, having the courts remember the reasons for the
rule will prove very beneficial. The problem with the exceptions was that they
were thought to be “ossified judicially created categories” (Smith, supra,
at p. 930), but this approach will foster a renewed understanding of the
rationales underlying these categories.

58In sum, if one wishes to displace an exception, which is based on
concepts of necessity and reliability, one will have to displace either
necessity or the reliability upon which the exception is based. This can only
be done where the circumstances would be generally applicable to a class of
persons or in a particular circumstance faced by all persons.

59In principle, the trial judge’s residual discretion to exclude
admissible evidence where its prejudicial effect substantially outweighs its
probative value (Seaboyer, supra, at p. 611) could, in
appropriate circumstances, apply to evidence falling within an exception to the
hearsay rule: see, e.g., Hawkins, supra, at para. 85. This point
was not addressed in the Court of Appeal and was not argued before this Court
and therefore I see no need to undertake an analysis of the issue.

60I would summarize my position in the following terms which I believe are
largely consistent with the approach taken by the British Columbia Court of
Appeal in R. v. Chahley (1992), 72 C.C.C. (3d) 193, and R. v.
Collins (1997), 118 C.C.C. (3d) 514. First, Khan and its progeny
permit hearsay evidence to be admitted in new situations where necessary and
where indicia of reliability are present, but did not abolish the traditional
exceptions. Second, the traditional exceptions are largely consistent with the
necessity-reliability criteria and so do not generally require revision.
Finally, the traditional exceptions may be modified or supplemented as
appropriate to conform to the principled approach (on this last point, see
Rosenberg, “B. (K.G.) – Necessity and Reliability: The New
Pigeon-holes”, supra, at p. 71). Trial judges should continue to apply
the traditional exceptions to the hearsay rule.

(4) Admissibility of Cook’s Statement of Intention

(a) Is the Statement Hearsay?

61No disagreement exists that the Crown sought to use Cook’s statement
to Giesbrecht that he had to “go and do an Autopac scam with Robert” as proof
of the truth of its contents. Accordingly, as Iacobucci J. explains in para.
165, it is hearsay.

(b) The “Present Intentions” Exception to the Hearsay Rule

62The next question is whether the statement falls within a recognized
exception to the rule against hearsay. All three judges in the Court of Appeal
recognized that the statement fell squarely within the “present intentions”
exception recognized by this Court in Smith, supra, at p. 925.
Twaddle J.A., dissenting, would have excluded the statement not because it
exceeded the confines of the “present intentions” exception but because he
believed that the principled approach should be applied in this case. I
disagree both with Iacobucci J.’s description of the “present intentions”
exception and with his modification of the exception to comply with the
principled approach. Furthermore, I do not agree with his characterization of
the so-called “joint act” rule under this exception.

64By interpreting “circumstances of suspicion” in a broad fashion (see
paras. 177-79), Iacobucci J.’s approach neutralizes the utility of the
exceptions which provide predictability and a certain degree of swiftness in
our trial process. By requiring the negation of the possibility that the declarant
was untruthful, Iacobucci J. creates an extremely high threshold for the
introduction of previously acceptable hearsay evidence. The possibility of
untruthfulness is inherent in every statement. Ascertaining truth is the
fundamental task for the trier of fact, not for the trier of law determining
threshold reliability.

65In addition, by adding the requirement that a statement of intention not
be made under circumstances of suspicion so as to conform with the principled
approach, Iacobucci J. reveals the essential problem with his proposed mode of
hearsay analysis. For if each exception is to incorporate a necessity and
reliability component in examining each individual statement that comes under
the exception, then the end result is the eradication of the exceptions
themselves. I appreciate that under the approach proposed by Iacobucci J., the
exceptions are supposed to continue to serve a useful role as, inter alia,
“practical manifestations of the principled approach in concrete and meaningful
form” (para. 205). However, once a trial judge is required to examine every
hearsay statement in terms of reliability and necessity, I do not think that
there is much left of the exceptions.

66Earlier, I explained my preferred mode of rationalizing the traditional
exceptions with the principled approach. I will not repeat it except to say
that I believe that the categories as a whole may be revisited and refined in
light of the principled approach, but they are not supplanted by it. I see no
reason to depart from the existing definition of this exception as outlined by
Lamer C.J. in Smith, supra, and Martin J.A. in Moore, supra.

(c) The “Joint Act” Rule and the “Present Intentions” Exception

67It is common cause that the “present intentions” exception may not be
used to infer that a third party acted in accordance with the declarant’s
stated intention. Doherty J. explained the permissible chain of inferences in P.
(R.), supra, at p. 343:

Evidence of the deceased’s state of mind may, in
turn, be relevant as circumstantial evidence that the deceased subsequently
acted in accordance with that avowed state of mind. When a deceased says, “I
will go to Ottawa tomorrow”, the statement affords direct evidence of the state
of mind –– an intention to go to Ottawa tomorrow –– and circumstantial evidence
that the deceased in fact went to Ottawa on that day. If either the state of
mind, or the fact to be inferred from the existence of the state of mind is
relevant, the evidence is receivable subject to objections based on undue
prejudice.

Later at p.
344, Doherty J. wrote: “The evidence is not, however, admissible . . . to show
that persons other than the deceased acted in accordance with the deceased’s
stated intentions, save perhaps cases where the act was a joint one involving
the deceased and another person.” Lamer C.J. adopted this statement of the
joint act exception in Smith, supra, at pp. 926-27.

The statement of the declarant’s then state of mind should be received
as evidence of that state of mind. . . . The next step in the chain –– whether
an inference should be drawn that the deceased acted in accordance with that
state of mind, by himself, or jointly with another –– presents a problem, not
of hearsay, but of relevance and prejudicial value.

Doherty J.
properly recognized this in P. (R.), supra, at pp. 346-49.

69 Statements of intention may be admissible despite the fact that
they refer to a joint act: see the leading cases of Mutual Life Insurance
Co. v. Hillmon, 145 U.S. 285 (1892), at p. 296; United States v.
Pheaster, 544 F.2d 353 (9th Cir. 1976), at pp. 374-80; People v. Alcalde,
148 P.2d 627 (Cal. 1944), at pp. 631-33. Alcalde presented a situation
similar to the one before us: the deceased declarant had said that she “was
going out with Frank” that evening. The California Supreme Court, over the
dissent of Traynor J., held that the statement was admissible to show the
decedent’s intent that evening. Generally, this sort of evidence is admissible
as an indication of the declarant’s intention at the time he or she spoke. The
inferences to be drawn from the evidence are for the jury, properly cautioned.

(d) Use of Cook’s Statement

70I do not believe that the trial judge erred in leaving Cook’s statement
of intention to the jury. “Properly cautioned by the trial judge, juries are
perfectly capable of determining what weight ought to be attached to such
evidence, and of drawing reasonable inferences therefrom” (Smith, supra,
at p. 937). The trial judge told the jury that “[t]he Crown says that Ms.
Giesbrecht’s evidence is the second thread of evidence to link the accused,
Robert Starr, with the deaths of Cook and Weselowski. Again, it is for you
to decide whether the evidence of Cook’s statement about the scam goes as far
as the Crown would have you believe” (emphasis added). I do not believe
that this instruction invited the jury to draw an impermissible inference
against the appellant. In examining what the Crown “would have [the jury] believe”,
the Crown, referring to another statement not at issue here, explained
“evidence of intention” as “What was the deceased thinking about just before
his death?”. The Crown continued:

The difference between the statement of intention
by Mr. Cook to Young and the statement of intention by Mr. Cook to Giesbrecht
is that Cook carried the Giesbrecht intention out, didn’t he? He ended up in a
car, say the prosecution, driving down a ditch, smashing it up outside of the
Turski home. He travelled all that way. He had to have; he was found dead
there, and the car that was smashed against the pole was the car that Starr had
been in, in the Mohawk garage. So that expression of intention appears to have
been carried out. . . .

I believe that
the Crown was entitled to ask the jury to draw an inference that Cook in fact
acted in accordance with his stated intention, even if that stated intention
involved a joint act: see P. (R.), supra. In this situation,
circumstances of joint intention may be considered along with the other
evidence in determining what the third party did. Thus, I do not believe that
the Crown asked the jury to draw an impermissible inference nor do I believe
that the trial judge erred in instructing the jury on this issue.

71Accordingly, I would dismiss this ground of the appeal.

B. The
Admissibility of Cheryl Ball’s Out-of-Court Identification

72On this issue, I agree with Monnin J.A.’s decision in the Court of
Appeal that the trial judge may have committed an error by allowing the police
officers to testify as to Ms. Ball’s out-of-court identification of the
appellant, but that any harm that such evidence may have caused was effectively
negated by the trial judge’s instructions to the jury. Therefore, I do not
find it necessary to analyze this evidence under the “prior identification”
exception or under the principled approach as my colleague Iacobucci J. does.
I am convinced that the harm caused by the introduction of the evidence was minimal
given other testimony that placed the appellant at the Mohawk gas station
before the murders. Any harm that may have been caused by the impugned
evidence was nullified by the trial judge’s instruction to the jury.

73In the days immediately following the murders, RCMP Constables Madden
and MacLeod visited the home of Cheryl and Daniel Ball, interviewing them on
four occasions on three different days. Ms. Ball testified at trial that on
the second visit, two days after the murder, the police showed her some
photographs. She testified that her memory of seeing the photos was hazy and
that she did not think she had recognized anyone in the photos. Regarding the
RCMP’s third visit on the same day as the second, Ms. Ball testified that she
thought she had pointed to one of the three photographs shown to her and said
that the person in the photo “looks kind of familiar”. Ms. Ball met with the
police a week later, but at trial she did not recall having said anything to
them about any of the photos on that occasion. Ms. Ball did not testify at
trial as to why the person in the photo shown to her on the second visit looked
familiar or where she had seen the person. She was not asked whether she had
seen the appellant on the night of the murder and she did not testify that she
had done so. In fact, she did not mention the appellant in her testimony or
identify him in court.

74Constable Madden testified that on the second visit to her home, Ms.
Ball told him and Constable MacLeod that she had seen a man talking to Cook at
the Mohawk gas station. Constable Madden testified that Ms. Ball described the
man she had seen as white, with glasses and short hair in a ponytail. She
mentioned nothing about a goatee. Constable Madden testified that, at the time
of the murders, the appellant had long hair that was not in a ponytail, was not
wearing glasses, and had a goatee. To Constable Madden’s knowledge, the
appellant had never worn glasses. Constable Madden testified that Ms. Ball
indicated that the man in Photo No. 3 looked like the man whom she had seen at
the Mohawk gas station talking to Cook and who was “probably driving the other
car”. Photo No. 3 was a black and white photocopy of a photo of the appellant
in which he had a moustache, no goatee, long hair, and no glasses.

75Constable Madden further testified that when he and Constable MacLeod
returned to the Ball residence one week later, Ms. Ball picked out the same
photograph of the appellant that she had identified on the previous occasion,
from amongst a set of eight photographs. None of the other photos had been
included among the three shown to her the week before. Ms. Ball was not asked
whether her previous selection of the same photo influenced her selection of it
one week later.

76The dissent in the Court of Appeal and Iacobucci J. in his reasons
assert that Constable Madden’s testimony of Ms. Ball’s out-of-court
identification was important because it placed the appellant in St. Norbert,
whereas without Ms. Ball’s identification the appellant was last seen “halfway
across the city from where the crime occurred”. Both Twaddle J.A. and
Iacobucci J. are of the opinion that this piece of evidence might have been
the “last straw”, allowing the Crown to meet its onus. With respect, I cannot
agree.

77Constable Madden testified that Ms. Ball had stated that the appellant
“was the one that she saw at the Mohawk Station and that he was probably
driving the other car” (emphasis added). According to Twaddle J.A. and
Iacobucci J., this second half of the sentence may suggest that Ms. Ball
identified the appellant in St. Norbert where the murders took place, rather
than at the Mohawk gas station. I do not believe that the evidence supports
such an interpretation. After Constable Madden made the above statement in his
testimony, the trial judge asked for a clarification:

THE COURT: I’m sorry, Mr. Dangerfield
would you have Constable Madden repeat the words that Mrs. Ball said. “He is
the one I saw at the Mohawk” is that what you said?

THE WITNESS: She felt that he was the one
at the Mohawk Station.

THE COURT: Yes.

THE WITNESS: And she described him.

THE COURT: Yes.

THE WITNESS: And felt he was the one
there that had been talking to Bo Cook and that had been driving the car.

A few questions
later, on direct examination, Constable Madden again returned to the specifics
of Ms. Ball’s identification of the appellant:

Q All right. You put this before Mrs. Ball.
What did she say on that occasion?

A Without any hesitation at all, she pointed at
photo number 5.

Q Did she say
anything?

A And said: That was the one at the Mohawk.

The
appellant’s trial counsel clearly understood Constable Madden to be testifying
that Ms. Ball identified the appellant as seeing him at the Mohawk gas
station. On cross-examination, counsel for the appellant asked the following
regarding Ms. Ball’s out-of-court identification:

Q So did you say to Mrs. Ball, you also saw the
picture from the first time, are you sure that the fellow you saw at the Mohawk
is photograph 5 and you’re not just repeating what you say on August 23rd?

A No, we did not.

The
cross-examination on this point continued:

Q And even when she picked somebody out, she
wasn’t sure that was the person. She was telling you this person looks like?

A She says: I believe this is the one at the
Mohawk.

Q Did you ask her if she was positive?

A She gave a description. I did not ask her if
you are absolutely positive. She said: I think that’s the one at the Mohawk.

.
. .

Q When she gave you the description of the
person at the Mohawk, did she tell you that that person had a goatee?

A No, sir.

Q She told you that she thought the person in
the photograph was wearing glasses -- pardon me -- the person at the Mohawk was
wearing glasses?

A She said she [sic] was white, light
coloured hair.

In the course
of Constable Madden’s testimony, he did not make a single reference to St.
Norbert; neither did Crown counsel nor counsel for the appellant. Furthermore,
Constable MacLeod’s testimony similarly lacks any reference to St. Norbert:

Q And what did Mrs. Ball say, if anything, on
seeing them this time?

A She pointed to one photograph and she
identified that person as being at the Mohawk Station on the night that they
were there.

Q I see. Is that all she said about him that
you recall?

A She said it was him, it was the same guy.

Q I see. She mentioned the name Cook in this
connection?

A Yes, she mentioned that this person had been
talking to Bernard Cook.

78In light of the above testimony, I cannot agree with my colleague
Iacobucci J.’s assertion that there were two distinct elements to Constable
Madden’s testimony: namely, being at the Mohawk station and “probably” being in
the other car in St. Norbert. Nor do I accept his assertion in para. 228 that
the jury could have “easily” taken the reference to the “other car” to refer
“not to . . . the Mohawk station, but to the second car seen in St. Norbert
when the Balls last saw Cook and Weselowski alive”. In light of the above
testimony, I find it stretches credulity to assert that the jury could have
taken Constable Madden’s testimony to refer to Ms. Ball placing the appellant
in St. Norbert. Moreover, I do not see how these seven obscure words – “he was
probably driving the other car” -- subsequently clarified on no less than eight
occasions, could have constituted the “last straw” that allowed the Crown to
meet its onus. Additionally, Ms. Ball’s own limited testimony directly
contradicts the inference that Constable Madden was referring to Ms. Ball
seeing the appellant in St. Norbert. Ms. Ball testified in court that when she
was dropped off in St. Norbert she saw a small car next to the car in which she
had been riding but that she could not see if anyone was in the car. In a
discussion outside the presence of the jury, the court reiterated that Ms. Ball
had just testified that she did not see anyone in the car that was alongside
the car in which she had been a passenger. Given that Ms. Ball testified clearly
that she did not see the driver of the car in St. Norbert, I do not see how the
jury could have drawn a contrary inference from Constable Madden’s testimony.

79Furthermore, no harm was done by Constable Madden’s testimony because
Jodie Giesbrecht’s testimony also placed the appellant at the Mohawk station
and also saw the appellant sitting in a car at the station. Moreover, any
conceivable prejudice that might have been suffered by the appellant was cured
by the trial judge’s cautionary instruction to the jury. On this issue, he
instructed the jury as follows:

I think it is of some significance that Cheryl Ball
was not asked if the reason she could identify the individual in photo number 5
of Exhibit 11 was because she had seen a photo, that is, photo number 3 in
Exhibit 10, a week before. I think it is significant that photo number 3 in
Exhibit 10 is the only one, the only photograph of the three people in Exhibit
10 repeated in Exhibit 11. It is significant, I think, that she was not told
that the description she gave of the man she saw talking to Cook did not in
fact fit the description of the man in photograph number 3 of Exhibit 10. It is
significant, I think, as well that, in court, she did not mention Starr by name
and that she was not asked to identify nor did she identify the accused, Starr,
in the dock as being the man she saw at the Mohawk station. I would tell you,
then, that the identification evidence of Mrs. Ball is, to say the least,
extremely frail, and I would express the opinion that it does not link the
accused, Starr, to the deaths of either Weselowski or Cook. However, it is for
you to decide the value of her evidence.

Even the
appellant’s own counsel characterized the introduction of the constables’
testimony as much ado about not very much. Rather than characterize this
evidence as the “last straw” as Twaddle J.A. did in the Court of Appeal, the
appellant’s counsel conceded that the case did not rise and fall with the
constables’ testimony.

80In sum, given the trial judge’s admonition to the jury and the
appellant’s admission of the marginal role that the identification evidence
played, I cannot say that there is a reasonable possibility that the verdict
would have been different if the alleged error had not been made. I would
dismiss this ground of the appellant’s appeal.

C. The
Adequacy of the Instruction to the Jury on Reasonable Doubt

(1) The Decisions in Lifchus and Bisson

81As Iacobucci J. ably describes, our recent decisions in Lifchus,
supra, and R. v. Bisson, [1998] 1 S.C.R. 306, provide the
framework for a review of a trial judge’s charge to the jury on reasonable
doubt. I wish to emphasize the following points regarding these decisions.

82In Lifchus, at para. 22, this Court held that the expression
“beyond a reasonable doubt” must be explained to a jury. In four different
manners, Cory J. articulated guidelines for how trial judges should go about
explaining this concept to a jury. First, he discussed what should be avoided
(at paras. 23-26). Second, Cory J. explained what should be included in the
definition of reasonable doubt (at paras. 27-35). Third, Cory J. provided a
summary of what the definition “should and should not contain” (at paras. 36
and 37). Iacobucci J. reproduces this list of principles in paras. 231 and 232
of his reasons. Finally, Cory J. offered a suggested charge for trial judges
to use in explaining the concept of reasonable doubt to a jury (at para. 39).

83Several matters are noteworthy about Cory J.’s reasons in Lifchus
as set out above. First, in grappling with the issue of whether reasonable
doubt must be explained to a jury, Cory J. acknowledged the confusing nature of
this term and implicitly recognized the challenge facing trial judges in articulating
it to a jury.

84Second, I believe it is notable that in articulating how the expression
“reasonable doubt” should be explained to the jury, Cory J. generally employed
the words “should” and “should not” rather than the imperative “must” and “must
not”: Lifchus, supra, at paras. 23, 26, 28, 29, 31, 33, 35, 36
and 37. I cannot believe that Cory J. intended to use “should” and “must”
interchangeably so as to make his list of items that “should be avoided”
equivalent to a list of items that are prohibited and the inclusion of which
automatically constitutes reversible error. I find support for this position
in Cory J.’s statement that the equation of the term “moral certainty” with
“reasonable doubt” in a trial judge’s charge to the jury “although not
necessarily fatal to a charge on reasonable doubt, should be
avoided” (para. 25 (emphasis added)).

85Third, Cory J. stated expressly that “[a]ny form of instruction that
complied with the applicable principles and avoided the pitfalls referred to
would be satisfactory” (para. 40). He did not view his suggested charge as a
“magic incantation that needs to be repeated word for word” (para. 40).

86Fourth, and most importantly, Cory J. expressly stated that “an error in
the instructions as to the standard of proof may not constitute a reversible
error” (para. 41). He reiterated this Court’s statement in R. v. W. (D.),
[1991] 1 S.C.R. 742, at p. 758, that the verdict ought not be disturbed “if the
charge, when read as a whole, makes it clear that the jury could not have been
under any misapprehension as to the correct burden and standard of proof to
apply”. Cory J. explained that “[o]n the other hand, if the charge as a whole
gives rise to the reasonable likelihood that the jury misapprehended the
standard of proof, then as a general rule the verdict will have to be set aside
and a new trial directed” (para. 41).

87Two further annotations to Lifchus are necessary. Lifchus,
at para. 27, emphasized the need for the trial judge to link the
standard of proof beyond a reasonable doubt to

that basic premise which is fundamental to all criminal trials: the
presumption of innocence. The two concepts are forever as closely linked as
Romeo with Juliet or Oberon with Titania and they must be presented together as
a unit . . . Jurors must be reminded that the burden of proving beyond a
reasonable doubt that the accused committed the crime rests with the
prosecution throughout the trial and never shifts to the accused.

In addition,
Cory J. stated that jurors “must be advised that the Crown is not required to
prove its case to an absolute certainty since such an unrealistically high
standard could seldom be achieved” (para. 31).

88Bisson, supra, applied the Lifchus principles to
the problems that arise when examples are given to illustrate the phrase
“beyond a reasonable doubt”. In Bisson, the trial judge’s charge ran
afoul of Lifchus because it contained numerous misstatements. First,
the charge stated that a reasonable doubt consists of [translation] “a degree of certainty which you use every day,
in your important activities, whether at work, at home or in your leisure
activities. It is a degree of certainty which you employ, which you have used
since you reached the age of reason, without perhaps having dissected it as we
are doing at present” (para.3). Under Lifchus, at paras. 23-24,
such a statement was clearly wrong. Second, this misstatement was compounded
rather than cured by looking at the charge as a whole: Bisson, at para.
9. The charge proceeded to provide an example of the steps taken in order to
determine the level of oil in an automobile (at paras. 3 and 4). The charge
then reiterated its earlier error, stating, [translation]
“the degree of certainty that is required before concluding that someone is
guilty of something, is exactly the same degree of certainty, certainty beyond
a reasonable doubt, as the degree of certainty you use in important activities
in your life. Reasonable doubt is no more than that, it is no less than that”
(para. 4).

89Cory J. discussed the problems that examples may create, noting that the
example used seemed to suggest to jurors that they can apply the same standard
they would use in everyday, routine decisions to the determination of guilt
beyond a reasonable doubt (at para. 7). The trial judge in Bisson erred
in providing an example because it invited the jurors to apply a standard of
proof significantly lower than the standard to which the prosecution must be
held in a criminal case (at para. 8). Cory J. then noted that an error in the
instructions as to the standard of proof may not constitute a reversible error
if the charge when read as a whole does not give rise to the reasonable likelihood
that the jury misapprehended the correct standard of proof (at para. 9).
Looking at the instructions in their entirety, the Court concluded that a
reasonable likelihood existed that the jury misapprehended the correct standard
of proof (at para. 10).

90I believe that these are the relevant principles to apply in considering
the propriety of a charge to the jury on proof beyond a reasonable doubt.

(2) The Adequacy of the Reasonable Doubt Charge in This Case

91In determining the adequacy of the reasonable doubt charge in this case,
I find the reasons of Sharpe J.A. in the recent case of R. v. Tombran
(2000), 47 O.R. (3d) 182 (C.A.), particularly helpful because the charge in
that case was strikingly similar to the one at issue before us. I would adopt
Sharpe J.A.’s holding, at p. 194, that “[w]hile trial judges are now expected
to follow the Lifchus model charge, failure to do so in cases tried
before Lifchus, supra, does not constitute reversible error if
the charge conveys to the jury the special meaning attached to reasonable
doubt”.

92Despite not having the benefit of this Court’s decision in Lifchus,
the trial judge included most of the suggested elements in his charge to the
jury. I agree with the conclusion of the Court of Appeal that the charge met
the key requirements of Lifchus and that the flaws in the charge do not
vitiate it. For reference, I will set out the impugned portion of the charge
below:

It is rarely possible to prove anything with absolute certainty and so
the burden of proof on the Crown is only to prove the guilt of the accused
beyond reasonable doubt. What, then, is proof beyond a reasonable doubt?

The words "reasonable doubt" are used in
their everyday, ordinary sense and not as a legal term having some special
connotation. The words have no magic meaning that is peculiar to the law. A
reasonable doubt is an honest, fair doubt, based upon reason and common sense.
It is a real doubt, not an imaginary or frivolous one resting on speculation or
guess rather than upon the evidence you heard in this courtroom.

So you can see, the words "reasonable
doubt" are ordinary words we use in our everyday language. So if you can
say, I am satisfied beyond a reasonable doubt, the Crown has met the onus upon
it. If you cannot say those words ‑‑ if you cannot say, I am
satisfied beyond a reasonable doubt, the Crown has not met the onus on it, and
the accused is entitled to have your doubt resolved in his favour.

93It is clear from the above selection that, like in Tombran,
supra, the trial judge succeeded, without the benefit of our decision in Lifchus,
in complying with most of its guidelines. This portion of the charge
instructed the jurors that a reasonable doubt must not be an imaginary or
frivolous doubt (Lifchus, at para. 31); that it is a doubt based upon
reason and common sense (Lifchus, at para. 30); that it must be based on
the evidence that the jurors heard in the courtroom (Lifchus, at para.
30); and that the Crown is not required to prove its case to absolute certainty
(Lifchus, at para. 31). This portion of the charge did not equate proof beyond
a reasonable doubt to proof to a moral certainty (Lifchus, at paras. 25
and 37); nor did it instruct jurors that they might convict if they were “sure”
that the accused was guilty (Lifchus, at para. 37); nor did it invite
jurors to apply the same standard of proof that they apply to important
decisions in their own lives (Lifchus, at para. 37; Bisson, supra).
Elsewhere in his charge, the trial judge exhorted the jury to put any feelings
of prejudice or sympathy out of their minds (Lifchus, at paras. 31 and
36).

94 The trial judge’s charge, however, was not flawless.
Specifically, we must examine the effect of the trial judge’s misstatement that
the words “reasonable doubt” are used in their everyday, ordinary sense and
have no special legal meaning. It is asserted that this flaw in the charge,
together with the failure of the trial judge to state expressly that the Crown
was required to do more than prove the appellant’s guilt on a balance of
probabilities, constitutes reversible error. With respect, I cannot agree.

95The verdict ought not to be disturbed because the charge, “when read as
a whole, makes it clear that the jury could not have been under any
misapprehension as to the correct burden and standard of proof to apply”: W.
(D.), supra, at p. 758; Lifchus, at para. 41. While the
judge told the jury that the words “reasonable doubt” had no special meaning,
this was a harmless error because he proceeded to give them all the legal
information they required. The jury knew the accused was presumed innocent,
they knew the standard of proof was very high — a standard just below absolute
certainty — and they knew that they could not convict on a balance of
probabilities. Cory J.’s objection to the “no special meaning” instruction in
Lifchus was founded on the danger that the jury might judge on the basis
of their everyday affairs: see Bisson, supra. This danger was
obviated in this case by the trial judge’s instruction. Therefore, the charge
as a whole does not give rise to the reasonable likelihood that the jury
misapprehended the standard of proof: Lifchus, supra.

96What is essential is that the charge communicate clearly to the jury
that they cannot find the accused guilty on a balance of probabilities. I
believe that the charge did this. The opening sentence of the charge clearly
implies that proof beyond a reasonable doubt is just one notch lower than
absolute certainty; it is the highest level of proof that can be humanly
achieved. This negates any suggestion that proof on a balance of probabilities
might suffice. “[R]eading the charge as a whole, this jury could not have been
left with any doubt that the burden was on the Crown to prove every element of
the offence beyond a reasonable doubt rather than on a mere balance of
probabilities”: Tombran, supra, at p. 194.

97Moreover, the charge complied with Lifchus’s first principle that
it must be made clear to the jury that the standard of proof beyond a
reasonable doubt is inextricably linked to the presumption of innocence and
that this burden never shifts to the accused: Lifchus, at para. 27. The
relevant portion of the trial judge’s charge on this point is:

Let me first emphasize the
presumption of innocence. Simply put, the accused is presumed to be innocent
and he continues to be and remain innocent unless and until the Crown has
satisfied you beyond reasonable doubt of his guilt. This presumption remains
with the accused and for his benefit from the beginning of the case until the
end of the case. The onus of proving guilt rests upon the Crown from the
beginning to the end of the case and it never shifts. There is no burden
whatsoever on the accused to prove his innocence. The Crown must prove beyond
a reasonable doubt that an accused person is guilty of the offence or offences
with which he is charged before he can be convicted.

98In light of the trial judge’s compliance with the bulk of the principles
enunciated in Lifchus, I am loath to find that the charge was
automatically vitiated by the failure to include a specific item mentioned in Lifchus
or by the inclusion of an improper item. To do so would contravene our
holding that “an error in the instructions as to the standard of proof may not
constitute a reversible error”: Lifchus, at para. 41.

99Jurors are sophisticated persons who are instructed to listen to and
follow the entirety of the judge’s charge to them. We must assume that they do
so. It would ill behoove a reviewingcourt to do exactly what the jury
is commanded not to do and isolate a phrase or a small section of the charge,
ignoring the whole of it. I do not believe that is what Cory J. intended in Lifchus.
Rather, he was attempting to provide guidance to trial judges in the extremely
difficult task of articulating what is proof beyond a reasonable doubt and
communicating this standard to the jury.

100Lifchus should be viewed as a broad template for trial judges to
assist them in their difficult task. Cory J.’s suggestions provide a
touchstone for comparison for courts in reviewing jury charges. However,
reviewing courts must resist the temptation to use the Lifchus suggestions
as a mandatory checklist. The tendency to do so is natural and understandable
as it would make the task of reviewing a jury charge far easier. However, a
jury charge is not a multiple choice exam that can be marked by a computer.
Rather, it is akin to a work of literature that must be studied in its
entirety in order to evaluate it as a whole.

101Examining the charge in its entirety, I do not find that a reasonable
likelihood existed that the jury misapprehended the correct standard of proof.
Accordingly, I would dismiss this ground of appeal.

III. Disposition

102I would dismiss the appeal.

The judgment of Iacobucci, Major, Binnie, Arbour and Lebel JJ. was
delivered by

IACOBUCCI J.--

I. Introduction and Summary

103The appellant, Robert Starr, was convicted at trial before a judge and
jury of two counts of first degree murder. He had been accused of killing
Bernard (Bo) Cook and Darlene Weselowski by shooting them by the side of a
provincial highway on the outskirts of Winnipeg in the early morning hours of
August 21, 1994.

104This appeal was originally taken as of right from the decision of the
Manitoba Court of Appeal, dismissing the appellant’s appeal from the two
convictions. Twaddle J.A. dissented in the Court of Appeal on two distinct
hearsay issues and on the sufficiency of the trial judge’s charge to the jury
on the issue of reasonable doubt, which are the issues that form the basis for
this appeal. Twaddle J.A. would have allowed the appeal and ordered a new trial.
On November 9, 1999, the Court ordered a re-hearing of the appeal, and, by
letter dated November 18, 1999, invited submissions on the application of the
“principled approach” to the traditional hearsay exceptions, and on the scope
of the common law exception for statements of present intention.

105As a general matter, I agree with the lucid reasons of Twaddle J.A., and
with the remedy he proposed. However, because this case raises important
issues regarding the admissibility of hearsay evidence, including, in
particular, the question of whether exceptions to the hearsay rule must conform
to the principled approach to hearsay admissibility adopted by this Court in R.
v. Khan, [1990] 2 S.C.R. 531, and subsequent cases, I will set out my
reasons in some detail. The appeal also provides a useful opportunity to
comment upon the proper application of the principles set out by this Court in R.
v. Lifchus, [1997] 3 S.C.R. 320, regarding the appropriate manner of
instructing a jury on reasonable doubt. This is particularly important in
light of the frequency with which this issue has arisen of late, particularly
in R. v. Russell, S.C.C., No. 26699 (heard November 5, 1999), R. v.
Beauchamp, S.C.C., No. 27075 (heard December 8, 1999), and R. v.
Avetysan, S.C.C., No. 27279 (heard January 28, 2000)*.

106In the result, I conclude that the Court of Appeal erred in admitting
the statement in question under the “present intentions” exception to the
hearsay rule. However, Khan, supra, and subsequent cases have
established that hearsay that does not fit within a traditional exception may
nonetheless be admissible if it meets the twin criteria of reliability and
necessity. This case therefore requires that we determine the admissibility of
evidence under the principled approach, and more particularly, the interaction
between the principled approach and the traditional exceptions. In so doing, I
conclude that hearsay that does fit within a traditional hearsay
exception, as currently understood, may still be inadmissible if it is not
sufficiently reliable and necessary. The traditional exception must therefore
yield to comply with the principled approach.

107With respect to the jury instructions on the phrase “beyond a reasonable
doubt”, as set out in Lifchus, supra, an instruction like the one
in this case, which fails to explain that the beyond a reasonable doubt
standard has special legal significance and requires a significantly higher
quantum of proof than the balance of probabilities, will not satisfy the Lifchus
standard.

II. Factual
Background

108Bernard Cook and Darlene Weselowski were drinking with the appellant at
the Westbrook Hotel in the north end of Winnipeg during the late evening and
early morning of August 20-21, 1994. Cook had been released from prison the
previous day. A witness, Janet Daly, testified that at around 1:50 a.m., the
appellant stood up and told Cook: “If we are going to get this done, we better
get this done now”. Cook, Weselowski, and the appellant then left the hotel.

109Cook and Weselowski parted ways with the appellant. Outside, Cook and
Weselowski offered a couple named Cheryl and Daniel Ball a ride home in
Weselowski’s station wagon to the Balls’ residence in St. Norbert, a 20 to 30
minute drive away. Cook and Weselowski were intoxicated. Cook’s blood-alcohol
content at the time of his death, around 3:00 a.m., was .250. Weselowski’s was
.140. By Cheryl Ball’s account at trial, the Balls were also “really, really
drunk”.

110Weselowski drove, and the group first stopped at an adjacent Mohawk gas
station, where Jodie Giesbrecht, a sometime girlfriend of Cook, approached the
station wagon and had a conversation with Cook. During the conversation,
Giesbrecht observed a car beside the Mohawk gas station, and saw the appellant
in the car. She could not determine whether anyone else was in the car with
the appellant. A day or two later, Giesbrecht saw a picture in the newspaper of
what she believed was the car in which she had seen the appellant. The car had
been found at the scene of the murder. After seeing the picture, Giesbrecht
phoned the police and told them she had seen the car on the night of August
20-21, 1994 at the Mohawk gas station, with the appellant in it.

111Giesbrecht had spent part of the previous evening with Cook, just after
his release from prison. She had been sitting with Cook and the appellant at
the Westbrook Hotel about 45 minutes before Cook left the hotel with
Weselowski. Giesbrecht testified that she attempted to avoid being seen by
Cook as she approached the car, because she did not want Cook “to take off on
me while he was with Darlene [Weselowski]”. In their discussion beside the
station wagon, Cook told Giesbrecht that he was driving the Balls home with
Weselowski. Giesbrecht became angry with Cook because he was out with
Weselowski rather than her, and she walked away from the car. Cook got out of
the car and followed Giesbrecht into a laneway, where they had a further
conversation. Giesbrecht asked Cook why he would not come home with her.
According to Giesbrecht, Cook replied that he had to “go and do an Autopac scam
with Robert”. Giesbrecht understood “Robert” to be the appellant. Cook said
he was to receive $500 for his involvement in wrecking a car for insurance purposes.
Giesbrecht testified that it was strange for Cook to discuss business matters
like this with her.

112At trial, the defence unsuccessfully sought to exclude as hearsay
Giesbrecht’s testimony regarding Cook’s stated intent to participate in an
Autopac scam with the appellant.

113Weselowski, Cook, and the Balls drove to Le Maire Street in St. Norbert,
where the Balls got out of the car. Shortly after exiting the station wagon,
Cheryl Ball looked back and observed a smaller car alongside the station
wagon. Cheryl Ball had seen the smaller car follow them as they turned onto Le
Maire Street. She could not recall the colour or make of the smaller car. She
could not see how many people were in the smaller car. She could not hear any
voices coming from either of the two cars. Cheryl Ball then turned away and
continued to walk home with her husband.

114Around 3:00 a.m., Albert and Darlene Turski were awakened by their dog
barking and by the sound of spinning tires outside their bedroom window. The
Turskis lived on a farm bordering on provincial highway 247, several kilometres
from where the Balls had been dropped off.

115Albert Turski testified that he looked out the window and saw on the
road the lights of two cars. One car seemed to be larger than the other,
judging by the sound of its engine. He could not see the vehicles clearly,
other than their lights. The road was 50 to 75 yards away. The smaller car
was driving along a ditch and its tires sounded like they were spinning in the
grass. The larger car approached the smaller car but did not come right up to
it. The smaller car got stuck but then emerged from the ditch. The lights on
the larger car turned off. Albert Turski heard mumbling from people talking
for about 10 to 15 seconds. He could not determine whether it was two people
talking, or more than two. He then heard two “pops”, and about five seconds
later the smaller car drove across the road into the ditch again and back out,
weaving, while the larger car turned its lights on and drove off down the
highway at a normal speed. Albert Turski went back to bed.

116Darlene Turski’s testimony was largely similar to that of her husband.
However, she heard the mumbling of people talking for what she considered to be
one or two minutes, and she testified that the talking sounded as though it
involved “more than two” people. Right after the conversation ended, she heard
two “pops”. About fifteen seconds later, she said, the two cars pulled away
and she and her husband lay back down in bed. Albert fell asleep immediately,
but Darlene Turski stayed awake for a period of time. She then heard more
“pops” in a fast series, which sounded as if they were further away from the
house.

117At 4:26 a.m., a young couple drove by the Turskis’ house on provincial
highway 247 and discovered the body of Darlene Weselowski on the side of road
outside the house, and the body of Bernard Cook lying 400 metres up the road.
Weselowski had been shot twice in the head. Cook had been shot three times in
the head and three times in the chest. Both victims had been shot with the
same 9mm Glock semi-automatic pistol. A damaged car was found driven into a
telephone pole in the ditch near Cook’s body.

118Four days later, on August 25, 1994, the Weselowski station wagon was
found parked on Buchanan Street, a block and a half from the home of the
appellant’s brother William on Risbey Street. There were blood spatters all
over the front passenger side of the car, and several shell casings were found
in the car. The blood was determined to be Cook’s. Some of the appellant’s
scalp hairs were found on the floor of the driver’s side of the vehicle.

119On August 22, 1994, the day after the murders, the appellant and his
common law wife Shelley Letexier checked into a room at the Downs Hotel. After
they left the hotel at 3:28 a.m. on August 25, 1994, they drove to the home of
the appellant’s brother, William, on Risbey Street. After their departure, a
leather jacket in good condition was found in a dumpster at the back of the
hotel. A search of the appellant’s home resulted in the seizure of a purchase
receipt from the Sidney I. Robinson store for 9mm ammunition capable of being
loaded into a 9mm Glock semi-automatic pistol such as that which killed
Weselowski and Cook. Store records from the purchase bore the appellant’s
name.

120RCMP Constables Patrick Madden and Harvey MacLeod paid three visits to
the home of Cheryl and Daniel Ball after the murders. Cheryl Ball testified
that on the second visit, on August 23, 1994, the police showed her some
photographs. At trial, she had a hazy memory of seeing the photos, and
testified that she did not think she had recognized anyone in the photos. The
police left, but then Daniel Ball called the police back into the house, and
Cheryl Ball met with the police again. She testified at trial that she thought
she pointed to one of the three photographs shown to her and said that the
person in the photo “looks kind of familiar”. She met with the police again on
August 30, 1994, but did not recall at trial having said anything to police
about any of the photos at that time. Cheryl Ball did not testify at trial as
to why the person in the photo shown to her on August 23, 1994 looked familiar,
or where she had seen the person. She was not asked whether she had seen the
appellant on the night of the murders, and she did not testify that she had
done so. She did not mention the appellant in her testimony, or identify the
appellant in court. She did testify, however, that nothing she said in her
conversations with police was untrue.

121Daniel Ball had less recollection of his meetings with police in August
1994. He could not remember at trial whether he was shown any of the photos
that police later testified he was shown when they met with him. He did not
recall having identified anyone in the pictures as being familiar.

122Constable Madden testified that on August 23, 1994, Cheryl Ball told him
and Constable MacLeod that she had seen a man talking to Cook at the Mohawk gas
station. The man she had seen was white, had short hair in a ponytail, and
wore glasses. She did not mention him having a goatee. Madden testified that,
at the time of the murders, the appellant had long hair that was not in a
ponytail, was not wearing glasses, and wore a goatee. To Madden’s knowledge,
the appellant had never worn glasses. Madden testified that after Daniel Ball
beckoned him and MacLeod back into the house to speak to Cheryl Ball on August
23, Cheryl Ball indicated that the man in Photo No. 3 looked like the man whom
she had seen at the Mohawk gas station talking to Cook and who was also
“probably driving the other car”. Photo No. 3 was a photo of the appellant, in
which he wore a moustache, no goatee, long hair, and no glasses. The
photograph was a black and white photocopy.

123Madden testified that he and MacLeod returned to the Ball residence on
August 30, 1994 and, in separate interviews, showed Cheryl and Daniel Ball a
set of eight photographs. Photo No. 5 was the same photo of the appellant that
had been included in photocopied form as Photo No. 3 on August 23, 1994. None
of the other photos had been included among the three photos shown to the Balls
on August 23rd. According to Madden, Cheryl and Daniel Ball separately picked
Photo No. 5 as being the person from the gas station, although Daniel Ball told
them that he may have picked that photo because he had seen the same photo on
August 23. Cheryl Ball was not asked whether her previous selection of the
same photo on August 23 had influenced her selection on August 30.

124Madden’s testimony to the effect that Cheryl Ball identified the
appellant as having spoken to Cook at the Mohawk gas station, as well as MacLeod’s
testimony to the same effect, constitute a second group of statements that the
defence unsuccessfully sought to have excluded as hearsay at trial.

125Police intercepted private communications involving the appellant and
his common law wife, Shelley Letexier, who were recorded making several
statements that were relied upon to some degree at trial by both the Crown and
the defence. On the tapes, the appellant is heard making statements to
Letexier which the Crown argued were consistent with his having been in a
stolen car that followed Cook, Weselowski and the Balls up to the point that
the Balls were dropped off in St. Norbert, and with his having thrown a leather
jacket into the dumpster at the Downs Hotel. However, the appellant was also
recorded stating to Letexier that he “never killed anyone”, and Letexier was
recorded stating that the appellant and unspecified others were stupid
to have followed a car: “Oh well you guys are so fuckin’ stupid. You got
fuckin’ witnesses seen you guys, seen you behind that car. It should ah, been
called off right away when there were four people.”

126Several other witnesses testified at trial, including Cecil Starr, a
cousin of the appellant and a friend of Cook’s, who testified that, about ten
days after the murders, the appellant confessed to having killed Cook and
Weselowski. Cecil Starr said that the confession occurred at the apartment of
Dwight Bamlett, and that Cecil Starr had subsequently attended a party on a
reserve where several people, including Cecil’s brother, Mervin Starr, as well
as Dwight Bamlett, were discussing the confession.

127Several defence witnesses, including Cecil Starr’s sister Audrey
Malcolm, testified that Cecil Starr was a habitual liar, and that his story of
the appellant’s alleged confession was false. Malcolm stated that Cecil Starr
had since told her that he had not seen the appellant for over two years, and
that the appellant had never confessed. Mervin Starr testified that he had
never been at a party of the type described by Cecil. Dwight Bamlett testified
that Cecil Starr and the appellant had never been present together in his
apartment, and that he had never been at a party on a reserve of the type
described by Cecil. Former Staff Sergeant Savage of the RCMP testified that he
had interviewed Cecil Starr shortly before trial, and that Cecil had denied
ever having said that the appellant confessed to him, and had said he could not
remember any party on the reserve.

128Finally, the trial judge called Constable Robert Young of the Winnipeg
police to testify regarding his interactions with Cook on August 20, 1994,
several hours before the murders. Young testified that Cook was the “sergeant
at arms” of the Manitoba Warriors gang, meaning he was the person responsible
for all of the gang’s criminal matters. Young stated that he and Cook had had
meetings previous to August 20, 1994, at which Cook had expressed his desire to
dissociate himself from the Manitoba Warriors. Young stated that he met with
Cook on August 20, 1994 at about 6:00 p.m. Cook told Young about a break-in
that had occurred earlier that day at the Sidney I. Robinson store, in which
guns had been stolen. Cook said that he was to meet with members of the Los
Bravos gang later that night at the Westbrook Hotel to purchase some of these
guns, and that he had been told by Joseph Flett, the President of the Manitoba
Warriors, to wear his gang colours. Cook expressed a concern as to why he was
being asked to wear gang colours. Cook told Young that if he purchased guns he
would turn one over to Young, and that he would alert Young of success in the
purchase by calling Young at around 1:00 a.m. Young never received the
anticipated telephone call from Cook. When Cook’s body was found, he was
wearing the gang colours of the Manitoba Warriors.

129The theory of the Crown at trial was that the killing of Cook was a
gang-related execution perpetrated by the appellant. Weselowski was an
unfortunate witness who was killed simply because she was in the wrong place at
the wrong time. The theory was that the appellant had used an Autopac scam as
a pretext to get Cook out into the countryside. Outside the Turskis’ home,
Cook got into the smaller car and drove it into the ditch, hitting telephone
poles in an effort to damage the car. The appellant shot Weselowski twice in
the head, then drove Weselowski’s station wagon up the road to where Cook had
stopped the smaller car in the ditch. When Cook entered the station wagon on
the passenger side, the appellant shot him from the driver’s seat three times
in the head and three times in the chest. He then pushed Cook’s body out of
the vehicle and drove away, parking near his brother’s house, where the appellant
abandoned the station wagon.

130The defence theory focussed on the issue of identity. The defence
argued that the circumstantial evidence adduced by the Crown had failed to
prove that the appellant actually shot the victims, and had failed to dispel the
real possibility that other gang-related individuals were the killers.

III. Judicial
History

A. Manitoba
Court of Queen’s Bench

(1) Ruling and jury instructions on Cook’s
statement of intention

131The Crown brought an application at trial to permit Jodie Giesbrecht to
testify that Cook had told her, inter alia, that he had to “go and do an
Autopac scam with Robert”. The Crown sought to have this testimony admitted as
evidence of Cook’s state of mind on the evening of the murder and of his
intention to go with the appellant to perpetrate a car insurance scam. The
defence objected on the basis that the evidence was hearsay if used to prove
that the appellant acted in accordance with Cook’s stated intention, and
that its admission would be more prejudicial than probative because the jury
would likely draw such an impermissible inference.

132The trial judge did not hold a voir dire as part of the Crown
motion. Hirschfield J. found that Giesbrecht’s anticipated testimony regarding
the Autopac scam was admissible under the “present intentions” or “state of
mind” exception to the hearsay rule. Hirschfield J. found that the prejudicial
effect of the admission of the evidence was that Cook’s alleged statement
implicated the appellant in the commission of insurance fraud. The trial judge
noted that, in this regard, the words said to have been spoken by Cook “would
be as prejudicial as against the deceased as they are against the
[appellant]”. Hirschfield J. concluded that, in light of the other evidence
that the Crown anticipated calling in order to link the appellant to the
murders, the probative value of Giesbrecht’s testimony outweighed any
prejudicial effect.

133In his subsequent instructions to the jury regarding the use to be made
of Giesbrecht’s testimony regarding Cook’s statements to her on the night of
the murders, Hirschfield J. told the jury that it was for them to decide
whether Cook’s statement about the scam linked the appellant with the deaths of
Cook and Weselowski.

134A voir dire was held to determine the admissibility of the
testimony of Constables Madden and MacLeod regarding Cheryl Ball’s alleged
identification of the appellant as being a person she had seen talking to Cook
at the Mohawk gas station. Madden and MacLeod both testified. The Crown
argued it was entitled to adduce the statements of the two officers,
notwithstanding the fact that Cheryl Ball had not testified at trial as to
having seen a man talking to Cook at the gas station, or to having identified
that man in one of the photographs presented to her by police. The Crown
relied upon the prior identification exception to the hearsay rule. The
defence argued that the use of hearsay evidence to establish a prior
out-of-court identification of the accused by a witness is permissible only
where the witness acknowledges in court having made the prior identification.
Although the record is not entirely clear on this point, Hirschfield J. appears
to have accepted the Crown’s submissions. He ruled Madden and MacLeod’s
anticipated evidence admissible.

135In his instructions to the jury, Hirschfield J. reviewed the
out-of-court identification evidence said to have been provided by Cheryl Ball
to Constables Madden and MacLeod. The trial judge concluded his instructions
with a caution that Cheryl Ball’s identification evidence was “extremely frail”
and, in his view, did not link the appellant to the deaths of Cook and
Weselowski. However, Hirschfield J. left it to the jury to decide the value of
Ball’s evidence on this point.

(3) Charge to the jury on reasonable doubt

136In his instructions to the jury, Hirschfield J. explained that the
appellant was presumed to be innocent and that the onus was on the Crown to
prove the appellant’s guilt beyond a reasonable doubt. He then defined the
reasonable doubt standard in the following terms:

It is rarely possible to prove anything with absolute certainty and so
the burden of proof on the Crown is only to prove the guilt of the accused
beyond reasonable doubt. What, then, is proof beyond a reasonable doubt?

The words “reasonable doubt” are used in their
everyday, ordinary sense and not as a legal term having some special
connotation. The words have no magic meaning that is peculiar to the law. A
reasonable doubt is an honest, fair doubt, based upon reason and common sense.
It is a real doubt, not an imaginary or frivolous one resting on speculation or
guess rather than upon the evidence you heard in this courtroom.

So you can see, the words “reasonable doubt” are
ordinary words we use in our everyday language. So if you can say, I am
satisfied beyond a reasonable doubt, the Crown has met the onus upon it. If
you cannot say those words -- if you cannot say, I am satisfied beyond a
reasonable doubt, the Crown has not met the onus on it, and the accused is
entitled to have your doubt resolved in his favour.

No further
definition of the reasonable doubt standard was provided. The trial judge went
on to explain that the jury might be left with a reasonable doubt unless it
rejected as untrue some or all of the evidence, if any, that favoured the
appellant.

B. Manitoba
Court of Appeal (1998), 123 C.C.C. (3d) 145

(1) Monnin J.A., Kroft J.A. concurring

(a) Admissibility of Cook’s Statement of Intention

137Monnin J.A. found that Giesbrecht’s testimony that Cook told her he was
going to do an Autopac scam with the appellant was hearsay, but was nonetheless
admissible. While he did cite the decision of this Court in R. v. Smith,
[1992] 2 S.C.R. 915, Monnin J.A. primarily relied upon the “present intentions”
or “state of mind” exception to the hearsay rule, to the effect that, where the
intention or state of mind of an out-of-court declarant is relevant to a fact
in issue, evidence that would otherwise be hearsay is admissible to prove the
declarant’s intention or state of mind. Monnin J.A. endorsed the trial judge’s
ruling, stating that Cook’s alleged statement to Giesbrecht was admissible to
demonstrate Cook’s state of mind at the time, and to demonstrate that Cook
acted in accordance with his “stated intention or plan” (p. 158). Monnin J.A.
also found that the probative value of Cook’s statement outweighed any
prejudicial effect.

(b) Admissibility of Cheryl Ball’s Out-of-Court Identification

138Monnin J.A. found that the trial judge may have committed an error in
permitting the Crown to adduce evidence through Constables Madden and MacLeod
that Cheryl Ball had identified the appellant as a person she had seen talking
to Cook at the Mohawk gas station. However, Monnin J.A. held that the trial
judge’s cautionary instruction regarding the frailty of the identification
evidence “effectively negated any harm that such evidence might have caused”
(p. 159). He stated that the appellant’s case was not one that “turned on the
issue of identification” (p. 159), and that there was ample other evidence that
the jury could have relied upon to arrive at a guilty verdict. Citing R. v.
Bevan, [1993] 2 S.C.R. 599, as establishing the applicable test for
confirming a guilty verdict in the face of an error in law, Monnin J.A. stated
that he was satisfied that, even if the evidence of Madden and MacLeod had been
excluded, a properly instructed jury would have reached the same verdict.

(c) The Instruction on Reasonable Doubt

139Monnin J.A. stated that the trial judge’s charge to the jury, considered
as a whole, was more than fair and balanced, and if anything favoured the
appellant. On the issue of reasonable doubt, Monnin J.A. held that the trial
judge’s charge to the jury met the requirements set out by this Court in Lifchus,
supra, both in its actual language and in overall tone. In particular,
Monnin J.A. found that the trial judge had explained the link between the
reasonable doubt standard and the presumption of innocence, the requirement
that the Crown must prove more than mere probability of guilt, and the
principle that a reasonable doubt is based on reason and common sense,
logically founded upon the evidence or lack of evidence. Monnin J.A. noted
that, while the trial judge might have erred in stating that the words
“reasonable doubt” should be understood in their everyday ordinary sense, any
such error was remedied by the fact that the trial judge went significantly
further than had the trial judge in Lifchus, offering “interpretive
assistance” and linking the concept of reasonable doubt to the evidence.

(2) Twaddle J.A., dissenting

(a) Admissibility of Cook’s Statement of Intention

140Twaddle J.A. stated that four questions arose from the trial judge’s
admission of Giesbrecht’s evidence for the purpose of showing Cook’s intention
or state of mind on the night of the murders, namely: (1) whether a statement
that is adduced to prove the intention or state of mind of a deceased person
should be considered for admission under a categorized exception to the hearsay
rule, or only under the principled approach to the admission of hearsay
evidence enunciated in Khan, supra, and subsequent cases; (2)
whether Cook’s statement was in fact properly admitted for the purpose of
illustrating Cook’s state of mind or intention; (3) whether the statement would
have been admissible on the basis of necessity and reliability alone, pursuant
to the principles established in Khan, supra, and subsequent
cases; and (4) whether the jury was properly instructed as to the limits of the
statement’s use.

141With respect to the issue of whether the principled approach to the
admissibility of hearsay should be understood as having made the exceptions to
the hearsay rule irrelevant, Twaddle J.A. stated that, in Smith, supra,
this Court made it “very clear that the new approach was to be preferred” (p.
166). Nonetheless, Twaddle J.A. noted that, even in Smith, this Court
analysed first whether statements of the deceased were admissible under the
“present intentions” or “state of mind” exception to the hearsay rule, and then
analysed whether they were admissible using the necessity and reliability
approach. Twaddle J.A. stated that this bifurcated approach was likely taken
because the trial judgment in Smith was rendered prior to Khan, supra.
He stated that the appropriate test for the trial judge to have applied in the
appellant’s case was likely the necessity and reliability test alone. However,
in light of Smith and the trial judge’s focus on the “state of mind”
exception, Twaddle J.A. dealt with both approaches to the admissibility of
Giesbrecht’s testimony.

142Twaddle J.A. stated that it was generally accepted that evidence of a
statement made by a person who has since died is admissible to prove the state
of mind or present intentions of the deceased at the time of making the
statement. The controversy, Twaddle J.A. noted, is over the impermissible uses
to which such ante mortem statements might be put by the trier of fact.
In particular, there is a concern that evidence regarding the state of mind of
the deceased might be misused by the trier of fact to infer the state of mind,
character, or subsequent actions of the accused rather than the declarant.
Twaddle J.A. stated that this concern over impermissible uses of the evidence
was relevant in determining whether the probative value of the hearsay
statement outweighs its prejudicial effect upon the accused, relying in this
regard upon the judgment of Doherty J. (as he then was) in R. v. P. (R.)
(1990), 58 C.C.C. (3d) 334 (Ont. H.C.), which was cited with approval by this
Court in Smith, supra.

143Twaddle J.A. stated that the trial judge had erred in finding that the
probative value of Cook’s statement to Giesbrecht outweighed its prejudicial
effect. Part of the error, Twaddle J.A. explained, stemmed from the trial
judge’s finding that the relevant prejudice that would be suffered by the
appellant if the statement was admitted was only that the jury might be
inflamed by information suggesting he was inclined to commit a criminal act
such as insurance fraud. Rather, Twaddle J.A. found, the prejudice was the
more serious problem that the jury may have used evidence of Cook’s state of
mind to infer the appellant’s state of mind and the appellant’s subsequent
course of conduct, i.e., that the appellant did in fact meet with Cook later
that night on the side of provincial highway 247.

144Twaddle J.A. held further that the trial judge had erred, after finding
that Giesbrecht’s testimony was admissible pursuant to the “state of mind”
exception, in not then holding a voir dire to determine the reliability
of Cook’s statement, in accordance with the principled approach to hearsay
admissibility set out in Khan and Smith. Twaddle J.A. found that
Giesbrecht’s evidence was equally inadmissible on this basis. He reviewed
several factors indicating that Cook’s statement was unreliable, including
especially Cook’s strong motive to lie to Giesbrecht about his intentions on
the night of the murders.

145Finally, Twaddle J.A. held that the trial judge had erred in his
instruction to the jury regarding the permissible use of Cook’s statement.
Twaddle J.A. noted that, rather than caution the jury against using Cook’s
statement in order to prove the appellant’s state of mind and subsequent
actions, as he ought to have done, the trial judge in fact invited the jury to
draw this impermissible inference if they felt the evidence warranted it.
Twaddle J.A. held that Cook’s statement to Giesbrecht was inadmissible on any
basis, and that the statement’s admission, particularly with an erroneous
instruction to the jury regarding its permissible use, constituted reversible
error.

(b) Admissibility of Cheryl Ball’s Out-of-Court Identification

146Twaddle J.A. characterized this issue as whether a police officer’s
evidence of an out-of-court identification of the accused by a witness is
admissible where the witness does not testify as to whether she made the
identification in question. Twaddle J.A. felt that it was important to
consider this question, notwithstanding the Crown’s concession on appeal that
the identification evidence might have been inadmissible, because he did not
agree that the trial judge’s cautionary instruction to the jury regarding the
frailty of the identification evidence was sufficient to dispel the possibility
of a miscarriage of justice.

147Twaddle J.A. noted that the more common fact scenario is where a witness
testifies that he or she recalls having made a previous identification of the
accused, but is unable to repeat the identification in court or to recall who
was identified. He stated that the law is fairly clear that, in such
circumstances, a police officer may be permitted to testify simply as to the specific
photograph or person pinpointed by the witness on that previous occasion: R.
v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.). After reviewing some of
the relevant jurisprudence, Twaddle J.A. distinguished the appellant’s case
from cases such as Tat. He stated that, where a witness does not
acknowledge having made a prior identification, there is a problem because it
is no longer the eyewitness implicating the accused, but the police. There is
no way to test whether, in fact, the eyewitness ever implicated the accused,
because there is no testimony on point.

148Twaddle J.A. stated that, given the inherent frailty of identification
evidence in any event, it would take exceptional circumstances for
identification evidence introduced as hearsay to be sufficiently reliable to be
admissible under the principled approach to hearsay admissibility. He did not
find such exceptional circumstances to exist in the appellant’s case.

149Moving on to consider whether this ground of appeal could nonetheless be
dismissed on the basis that the trial judge’s cautionary instruction to the
jury negated any miscarriage of justice, Twaddle J.A. held that the jury
verdict might reasonably have been different if the two officers had not been
permitted to testify on the alleged identification by Cheryl Ball. He stated
that Ball’s identification of the appellant was important because it placed the
appellant in St. Norbert, whereas without Ball’s identification the appellant
was last seen “halfway across the city from where the crime occurred” (p.
176). Although the trial judge cautioned the jury as to the frailty of the
evidence, he also left it to the jury to decide whether to accept the
identification evidence. Twaddle J.A. found that there was a reasonable
possibility that the jury would not have convicted the appellant if Ball had
not identified the appellant as the driver of the car that followed Cook and
Weselowski to St. Norbert. This piece of evidence might have been the “last
straw”, he said, allowing the Crown to meet its onus.

(c) The Instruction on Reasonable Doubt

150Twaddle J.A. stated that there is a problem in instructing a jury, as
the trial judge did in this case, that the word “reasonable” in the criminal
standard of proof beyond a reasonable doubt is to be understood in its
everyday, ordinary meaning. By this understanding, he said, the term
“reasonable doubt” would mean that even a legitimate doubt would not stand in
the way of conviction if the doubt was only moderate, or only made guilt
probable. Twaddle J.A. referred on this point to the reasons of this Court in Lifchus,
supra, where Cory J. stated that, while a jury should be told that
absolute certainty is not required in order to convict, the jury should also be
told that something more than mere probability of guilt is required for a
conviction.

151Twaddle J.A. stated that an omission to instruct the jury that a
probability of guilt is not a sufficient basis upon which to convict, when the
jury is instructed that absolute certainty of guilt is not required, will
ordinarily be a fatal error justifying a new trial. He found that the
requirement to instruct the jury that “beyond a reasonable doubt” means
something more than “proof on the balance of probabilities” is particularly
acute where, as in the appellant’s case, the trial judge tells the jury that
the words “reasonable doubt” are to be understood in their ordinary, everyday
meaning and not as having a special connotation in the criminal law context.
Following Lifchus, supra, Twaddle J.A. held that a review of the
trial judge’s charge to the jury as a whole in this case gave rise to a
reasonable likelihood that the jury misapprehended the standard of proof, such
that a new trial was required.

IV. Issues

152Three issues of law are presented by this appeal:

1. Did the majority of the Manitoba Court of
Appeal err in law in affirming the trial judge’s decision to admit Jodie
Giesbrecht’s testimony regarding a statement of intention made by the deceased
Bernard Cook?

2. Did the majority of the Manitoba Court of Appeal
err in law in affirming the trial judge’s decision to admit the testimony of
Constables Madden and MacLeod regarding an out-of-court identification made by
Cheryl Ball?

3. Did the majority of the Manitoba Court of
Appeal err in law in finding that the trial judge had explained the concept of
reasonable doubt to the jury in an adequate manner?

V. Analysis

A. The
Hearsay Issues

(1) Introduction

153The law of hearsay in Canada and throughout the common law world has
long been governed by a strict exclusionary rule relaxed by a complex array of
exceptions. Recently, as noted in Smith, supra, at p. 932, this
Court has moved in a new direction by adopting a principled approach to hearsay
“governed by the principles which underlie the rule and its exceptions alike”.
According to this approach, hearsay evidence may be admissible, notwithstanding
the inapplicability of the categorical exceptions on the facts of the case,
provided the criteria of necessity and reliability set out in Khan are
met.

154The majority in the Court of Appeal below was of the view that hearsay
evidence should be admissible either where the evidence falls within a
traditional hearsay exception, or where the evidence is admissible using
the principled approach developed in Khan and Smith. Twaddle
J.A., dissenting, held that the principled approach must prevail in determining
hearsay admissibility, and that the fact that the evidence in the particular
case fell within a traditional hearsay exception was insufficient standing
alone to determine its admissibility.

155My approach in these reasons is as follows. First of all, and with
respect for the contrary view, I am of the opinion that the Court of Appeal
erred in finding that Cook’s statement to Giesbrecht fit within the present
intentions exception to the hearsay rule. I reach this conclusion for two
reasons: the statement was made under circumstances of suspicion, and it was
used to prove the intentions of someone other than the declarant. Having so
concluded, it is necessary to ask whether the statement was admissible under
the principled approach, as enunciated in Khan, supra, and Smith,
supra. I conclude that it was not, much for the same reasons that it
does not fall within the present intentions exception. Answering this question
also raises issues respecting the interaction between the principled approach
and the existing exceptions. I conclude that in the event of a conflict
between the two, it is the principled approach that must prevail. The
governing principles for hearsay admissibility must be reliability and
necessity.

156I begin my analysis with a brief discussion of the nature and purpose of
hearsay evidence, which I hope will be helpful in defining the precise hearsay
issues in the appeal, and the problem posed for the trial process by hearsay
evidence more broadly. Next, I consider in turn the admissibility of Jodie
Giesbrecht’s testimony regarding Bernard Cook’s statement of intention, and the
admissibility of Constables Madden’s and MacLeod’s testimony regarding Cheryl
Ball’s out-of-court identification. As I will explain below, both statements
were unreliable and should have been excluded under both the traditional
exception and the principled approach.

(2) The Nature and Purpose of Hearsay Evidence

157The hearsay rule is a notable exception to the general evidentiary
principle that all relevant evidence is admissible. To repeat, hearsay
evidence was traditionally excluded unless the hearsay evidence came within one
of the so-called exceptions to the rule. While it is very difficult to express
an entirely complete definition of “hearsay evidence”, it will be useful to
elaborate briefly on the principal defining features of hearsay before
beginning to analyse the hearsay issues in this appeal.

158Hearsay issues most typically arise when a witness at trial testifies
regarding the contents of an earlier, out-of-court statement. Bernard Cook’s
alleged statement to Jodie Giesbrecht fits within this most simple definition.
A statement can be hearsay even though the out-of-court statement was made by
the witness at trial, or even in some cases where the only “statement” was a
non-verbal assertion. The breadth of the hearsay rule is illustrated in this
case by the hearsay evidence regarding Cheryl Ball’s out-of-court
identification, discussed more fully below. Ball was a witness in the trial
proceedings in this case yet has also been posited as an out-of-court declarant
for the purpose of the hearsay rule, because Constables Madden and MacLeod
testified about her out-of-court statements identifying the appellant.

159The difficulty encountered in defining hearsay has been acknowledged
many times by courts and by learned authors on the law of evidence: see, e.g.,
R. v. Abbey, [1982] 2 S.C.R. 24, at pp. 40-41, per Dickson J. (as
he then was), citing Phipson on Evidence (12th ed. 1976 (supplemented to
1980)), para. 625, at pp. 263-64. More recent definitions of hearsay have
focussed upon the precise evidentiary concerns underlying the exclusionary
rule, namely the absence of an opportunity for meaningful, contemporaneous
cross-examination of the out-of-court declarant in court under oath or solemn
affirmation, regarding the truth of the specific statement or expressive
conduct that is sought to be admitted as proof of its contents. The central
concern revolves around the inability to test the reliability of the
declarant’s assertion. As stated by the Law Reform Commission of Canada in its
1975 Report on Evidence, at pp. 68-69:

Hearsay statements are excluded from evidence in
trials because of the difficulty of testing their reliability. If a person who
actually observed a fact is not in court, but a statement he made to someone
about it is introduced in evidence, there is no way of inquiring into that
person’s perception, memory, narration or sincerity. His statement about the
fact might be false because he misperceived it or did not remember it correctly,
or he may have misled the person to whom it was made because he used words not
commonly used, or he may simply have lied about it. These factors, which
determine the reliability of his statement, can only be tested if he is in the
courtroom and subject to cross-examination.

160It was this fundamental concern with reliability to which Lamer C.J. was
adverting when, speaking for the majority of the Court in R. v. B. (K.G.),
[1993] 1 S.C.R. 740, at p. 764, he articulated the central “hearsay dangers” as
“the absence of an oath or solemn affirmation when the statement was made, the
inability of the trier of fact to assess the demeanour and therefore the
credibility of the declarant when the statement was made (as well as the
trier’s inability to ensure that the witness actually said what is claimed),
and the lack of contemporaneous cross-examination by the opponent”. See
similarly E. M. Morgan, “Hearsay Dangers and the Application of the Hearsay
Concept” (1948), 62 Harv. L. Rev. 177; S. Schiff, Evidence in the
Litigation Process (4th ed. 1993), vol. 1, at pp. 239-41.

161Cross on Evidence (7th ed. 1990) describes the hearsay rule in
the following terms, at p. 42:

. . . an assertion other than one made by a person while giving oral
evidence in the proceedings is inadmissible as evidence of any fact asserted.
[Emphasis in original.]

It is of
interest to note that the above formulation was adopted as correct by the House
of Lords in R. v. Sharp, [1988] 1 W.L.R. 7, at p. 11. Though formulated
differently, the definition of hearsay promulgated by the United States Federal
Rule of Evidence 801 is similar: “‘Hearsay’ is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted”. “Statement” is defined as “(1) an
oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion”. The most recent edition of Professor
McCormick’s treatise on evidence (McCormick on Evidence (5th ed. 1999),
vol. 2, at § 246) has adopted this definition.

162These articulations of the hearsay rule make clear that hearsay evidence
is defined not by the nature of the evidence per se, but by the use to
which the evidence is sought to be put: namely, to prove that what is asserted
is true. When the out-of-court statement is offered for its truth, the
inability to cross-examine or “test” the source of the evidence in court under
oath or solemn affirmation as to the truth of the assertion undermines its
reliability: see I. Younger, An Irreverent Introduction to Hearsay
(1977), an address to the American Bar Association Annual Meeting, Atlanta,
Georgia, August 11, 1976. In short, the essential defining features of hearsay
are the purpose for which the evidence is adduced, and the absence of a
meaningful opportunity to cross-examine the declarant in court under
oath or solemn affirmation as to the truth of its contents.

163With this understanding of the nature and purpose of the hearsay rule in
mind, I now turn to consider the hearsay evidence and exceptions at issue in
this appeal.

(3) Admissibility of Cook’s Statement of Intention

(a) The Proposed Use of Cook’s Statement

164Assuming the veracity of Jodie Giesbrecht’s testimony at trial,
approximately one hour before Cook was killed, he told Giesbrecht that he had
to “go and do an Autopac scam with Robert”, meaning the appellant.

165The first stage of the hearsay analysis is to ask whether Cook’s
out-of-court statement to Giesbrecht is sought to be adduced in order to prove
the truth of its contents. The Crown acknowledged in the courts below that the
purpose of adducing Cook’s statement was to illustrate Cook’s immediate
intention, shortly prior to his death, to go with the appellant to wreck a car
for insurance purposes. Cook’s intended course of action on the night of his
murder was relevant, the Crown argued, because the jury could infer from this
evidence of intention that Cook followed through on his intention, thus
shedding light upon the location of the murders and the presence of a wrecked
car at the scene. The Crown submitted that the statement, if true, also linked
the appellant to Cook, the car, and the scene. In short, the intention to “go
and do an Autopac scam with Robert” is the content of Cook’s statement, and the
Crown sought to use the statement as proof of its contents.

166It is very important to note that the Crown’s proposed use of Cook’s
statement to Giesbrecht went beyond proving just Cook’s intentions. In his
closing address to the jury, Crown counsel argued that Cook’s statement proved
that the appellant “proposed that [Autopac] scheme to Cook because it would
isolate Cook if he followed along with it, without alarming him”. Given the
trial judge’s instruction to the jury that it was “for [them] to decide whether
the evidence of Cook’s statement about the scam goes as far as the Crown would
have [them] believe”, it is apparent that the evidence was also admitted in
order to prove the intentions, and subsequent actions in conformity therewith,
of the appellant. By permitting the Crown’s argument to go to the jury, the
trial judge expressly permitted the jury to infer the appellant’s
intentions and subsequent conduct based on Cook’s statement of intention
to Giesbrecht.

167In light of these proposed uses of the statement, Giesbrecht’s testimony
regarding Cook’s statement to her is hearsay and would generally be
inadmissible as such. It was an out-of-court statement, and it was offered by
the Crown to prove the truth of the matter asserted; namely, that Cook intended
to do an Autopac scam with Starr. The next stage of the hearsay analysis is to
examine whether Giesbrecht’s evidence is nonetheless admissible under the
appropriate exception.

(b) The “State of Mind” or “Present
Intentions” Exception to the Hearsay Rule

(i) Scope of the Rule

168The Crown argued that the “state of mind” or “present intentions”
exception to the hearsay rule applied to render Cook’s statement to Giesbrecht
admissible. This exception was most recently discussed in detail by this Court
in Smith, supra, where it was recognized that an “exception to
the hearsay rule arises when the declarant’s statement is adduced in order to
demonstrate the intentions, or state of mind, of the declarant at the time when
the statement was made” (p. 925). Wigmore has argued that the present
intentions exception also includes a requirement that a statement “be of a present
existing state of mind, and must appear to have been made in a natural
manner and not under circumstances of suspicion”: Wigmore on Evidence,
vol. 6 (Chadbourn rev. 1976), at § 1725, p. 129 (emphasis in original).
L’Heureux-Dubé J., at para. 63 of her reasons, denies that Wigmore’s suggestion
has ever been adopted in our jurisprudence. As I will discuss below,
regardless of whether the present intentions requirement ever had such a
requirement, the principled approach demands that it must have it now. I will
therefore examine the admissibility of Cook’s statement under the present
intentions exception in light of that understanding.

169In Smith, Lamer C.J. explained that the exception as it has
developed in Canada permits the admission into evidence of statements of intent
or of other mental states for the truth of their contents and also, in the case
of statements of intention in particular, to support an inference that the
declarant followed through on the intended course of action, provided it is
reasonable on the evidence for the trier of fact to infer that the declarant
did so. At the same time, there are certain inferences that may not
permissibly be drawn from hearsay evidence of the out-of-court declarant’s
intentions. On this point, Lamer C.J. cited with approval (at p. 927) from the
judgment of Doherty J. in P. (R.), supra, at pp. 343-44, where
the case law was summarized as follows:

The evidence is not, however, admissible to show the state of mind of
persons other than the deceased (unless they were aware of the statements), or
to show that persons other than the deceased acted in accordance with the
deceased’s stated intentions, save perhaps cases where the act was a joint one
involving the deceased and another person. The evidence is also not admissible
to establish that past acts or events referred to in the utterances occurred.

170As noted by J. Sopinka, S. N. Lederman and A. W. Bryant, in The Law
of Evidence in Canada (2nd ed. 1999), at § 6.236, in Smith the Court
adopted “the proposition that the admissibility of statements of intention were
to be limited to the declarant’s state of mind and could not be used to prove
the act or intention of any other person”. It is important to emphasize that
even in “cases where the act was a joint one involving the deceased and another
person”, the hearsay is not generally admissible to show the intentions of a
third party. I draw this conclusion for two reasons.

171First, I can find no support in Canadian jurisprudence for the
proposition that statements of intention are admissible against someone other
than the declarant, apart from the one comment by Doherty J. noted above. Any
other interpretation focusses on the exception and ignores the rule. In
support of the proposition quoted above, Doherty J. cited three U.S. cases.
All three had held that statements about joint acts were only admissible to
prove the state of mind of the declarant: see Giles v. United States,
432 A.2d 739 (D.C. App. 1981), at pp. 745-46; United States v. Brown,
490 F.2d 758 (D.C. Cir. 1973); People v. Madson, 638 P.2d 18 (Colo.
1981). See also Shepard v. United States, 290 U.S. 96 (1933), at pp.
105-6; D. Kiesel, “One Person’s Thoughts, Another Person’s Acts: How the
Federal Circuit Courts Interpret the Hillmon Doctrine” (1984), 33 Cath.
U. L. Rev. 699, at pp. 738-39; and J. M. Maguire, “The Hillmon Case
-- Thirty-Three Years After” (1925), 38 Harv. L. Rev. 709, at p. 721.

172Second, there are very good reasons behind the rule against allowing
statements of present intention to be used to prove the state of mind of
someone other than the declarant. As noted above, the central concern with
hearsay is the inability of the trier of fact to test the reliability of the
declarant’s assertion. When the statement is tendered to prove the intentions
of a third party, this danger is multiplied. If a declarant makes a statement
about the intentions of a third party, there are three possible bases for this
statement: first, it could be based on a prior conversation with the accused;
second, it could be based on a prior conversation with a fourth party, who
indicated the third party’s intentions to the declarant; or third, it could be
based on pure speculation on the part of the declarant. Under the first
scenario, the statement is double hearsay. Since each level of double hearsay
must fall within an exception, or be admissible under the principled approach,
the mere fact that the declarant is making a statement of present intention is
insufficient to render it admissible. The second level of hearsay must
also be admissible.

173The other two scenarios also clearly require exclusion. If the
statement about joint acts is based on a conversation with a fourth party, then
the statement is triple hearsay, or worse. If, on the other hand, it is based
on pure speculation, then it clearly is unreliable and does not fit within the
rationale underlying the present intentions exception.

174In conclusion then, a statement of intention cannot be admitted to prove
the intentions of someone other than the declarant, unless a hearsay exception
can be established for each level of hearsay. One way to establish this would
obviously be the co-conspirator exception: see R. v. Carter, [1982] 1
S.C.R. 938; Sopinka, Lederman and Bryant, supra, at pp. 303-7. This is
no doubt what Doherty J. was referring to in P. (R.), supra, when
he spoke of “cases where the act was a joint one involving the deceased and
another person” (p. 344). Barring the applicability of this or some other
exception to each level of hearsay involved, statements of joint intention are
only admissible to prove the declarant’s intentions.

(ii) Application to this Appeal

175As noted above, the trial judge below admitted Cook’s statement to Jodie
Giesbrecht as admissible hearsay evidence of Cook’s “state of mind to go with
the accused”, and as evidence from which the jury could infer that Cook acted
in accordance with his stated intentions. He also admitted it as evidence from
which the jury could conclude that the appellant “proposed that [Autopac]
scheme to Cook because it would isolate Cook if he followed along with it,
without alarming him”. Therefore the evidence was admitted not only to prove
the intentions of the declarant Cook, but also of a third party – the
appellant-accused.

176All three judges in the Court of Appeal below accepted as a preliminary
proposition that Cook’s statement to Giesbrecht fell within the traditional
“present intentions” or “state of mind” exception to the hearsay rule.
Although Twaddle J.A., dissenting, considered it inappropriate to admit Cook’s
statement, especially to show the intentions and subsequent course of conduct
of the appellant, he would have excluded the statement through an application
of the principled approach to hearsay admissibility, or alternatively pursuant
to the court’s residual discretion to exclude evidence where its prejudicial
effect outweighs its probative force. Ordinarily, given our limited
jurisdiction on appeals as of right, our scope of review would be limited to
those issues raised by Twaddle J.A.’s dissent. However, by ordering a
re-hearing we expanded the scope of our review to include the question,
answered unanimously in the affirmative below, of whether Cook’s statement to
Giesbrecht falls within the present intentions exception.

177 With great respect to the Court of Appeal, I conclude that the
trial judge erred in admitting Cook’s statement to Giesbrecht under the present
intentions exception and, having admitted it, in not limiting its use by the
jury, for three reasons. First, the statement contained no indicia of
reliability since it was made under circumstances of suspicion; second, the
trial judge failed to instruct the jury that the statement was only admissible
as evidence regarding the intentions of Cook, not the appellant; and third,
even if it had been properly limited, the evidence was more prejudicial than
probative.

178Turning first to the circumstances of suspicion, I agree with Twaddle
J.A. that the statement lacked circumstantial guarantees of trustworthiness.
As Twaddle J.A. noted, Cook and Giesbrecht had been romantically involved for
almost two years. Cook had lived with Giesbrecht and her mother for a time,
and had spent the night before his murder with Giesbrecht, after getting out of
jail. Then, in the early morning hours of August 21, 1994, Giesbrecht observed
Cook in the car of another woman, Darlene Weselowski. Giesbrecht testified
that she thought Cook might try to “take off on her” if he saw Giesbrecht
approaching the car, and she endeavoured not to be seen by Cook until she was
close enough to talk to him. After an initial confrontation, Giesbrecht walked
away into an alley behind the gas station, where Cook followed her. Their
conversation ended in an argument because Cook was with Weselowski. She was
angry at Cook for being with another woman, and asked him expressly why Cook
would not come home with her rather than remain with Weselowski. It was at
this point, and in this heated context, that Cook said he was going to engage
in an Autopac scam with the appellant, who was sitting in a car nearby.
Giesbrecht testified that it was unusual for Cook to discuss such business
matters with her.

179Twaddle J.A. found that the circumstances surrounding the making of the
statement cast serious doubt upon the reliability of the statement. The
possibility that Cook was untruthful could not be said to have been
substantially negated. Twaddle J.A. relied, in particular, upon the fact that
Cook may have had a motive to lie in order to make it seem that he was not
romantically involved with Weselowski, and upon the ease with which Cook could point
to the appellant, who was sitting nearby in a car but out of earshot, as being
the person with whom he was going to do a scam. In my view, Twaddle J.A. was
correct in finding that these circumstances bring the reliability of Cook’s
statement into doubt. The statement was made under “circumstances of
suspicion”, and therefore does not fall within the present intentions
exception. The statement should have been excluded.

180The statement was also inadmissible for the purpose tendered because it
was a statement of joint intention. Even assuming, contrary to the foregoing,
that the Court of Appeal was correct in concluding that Cook’s statement was
admissible with respect to his own intentions under the present intentions
exception, we must remember that Cook’s statement was at least double hearsay,
if not worse. The Crown did not establish how Cook became qualified to comment
on the appellant’s intentions. The only hearsay exception that could
conceivably apply is the co-conspirator exception. However, this exception was
never raised at trial, and therefore the trial judge did not even attempt to
comply with the strict requirements for this exception set out in Carter,
supra.

181I should emphasize that statements of intention are not automatically
inadmissible simply because they refer to joint acts. As Twaddle J.A. noted at
p. 167 of his dissent, “[t]he controversy is not so much over whether such a
statement can be admitted in evidence, but rather over the use to which it can
be put”. Therefore statements of intention, which refer to intentions of
persons other than the declarant, may be admissible if the trial judge clearly
restricts their use to proving the declarant’s intentions, and if it is more
probative than prejudicial.

182McLachlin C.J. disagrees with the foregoing, particularly with the
statement of L’Heureux-Dubé J. at para. 67 (with which I agree) that “[i]t is
common cause that the ‘present intentions’ exception may not be used to infer
that a third party acted in accordance with the declarant’s stated intention”.
McLachlin C.J., at para. 13, argues that she would “not state the matter so
categorically” as “in some circumstances the statement of joint intention can
be fairly considered along with other evidence in deciding what the third party
did”. In fact, no such blanket rule is being laid down in this case. Doherty
J.’s statement on this point in P. (R.), supra, at p. 344 (as
mentioned by L’Heureux-Dubé J. at para. 67 of her reasons) correctly states the
law:

The rules of evidence as developed to this point do
not exclude evidence of utterances by a deceased which reveal her state of
mind, but rather appear to provide specifically for their admission where
relevant. The evidence is not, however, admissible to show the state of mind of
persons other than the deceased (unless they were aware of the statements), or
to show that persons other than the deceased acted in accordance with the
deceased's stated intentions, save perhaps cases where the act was a joint one
involving the deceased and another person. The evidence is also not admissible
to establish that past acts or events referred to in the utterances occurred.

This statement
of the present intention exception was adopted by this Court in Smith, supra,
at p. 927.

183Where we disagree, however, is over the application of these principles
in this case. McLachlin C.J., at para. 13, concludes that “Cook’s statement
may be viewed as one piece of circumstantial evidence supporting the inference
that Starr was with the deceased later that night”. In my opinion, this is an
impermissible use of Cook’s statement for the reasons given above. The jury
should have been explicitly warned that they could not rely on Cook’s statement
to infer the appellant’s intentions.

184McLachlin C.J. further concludes that the trial judge’s direction
to the jury in this case provided a sufficient warning as to how Cook’s
statement about the Autopac scam could legitimately be used, despite the fact
that an express instruction on this point was not given. With respect, I also
disagree. It is well-established that when a piece of
evidence may conceivably be put to both proper and improper uses, the trial
judge in a criminal case must give the jury a limiting instruction regarding
the permissible inferences that may be drawn from the evidence. See R. v.
D. (L.E.), [1989] 2 S.C.R. 111, at p. 128; R. v. Corbett, [1988] 1
S.C.R. 670, at p. 695; R. v. D. (L.E.) (1987), 20 B.C.L.R. (2d) 384
(C.A.), at pp. 398-400, per McLachlin J.A. (as she then was),
dissenting; McCormick on Evidence, supra, vol. 1, at § 59; P. K.
McWilliams, Canadian Criminal Evidence (3rd ed. (looseleaf)), vol. 1, at
p. 3-8; Phipson on Evidence (15th ed. 2000), at p. 110; Sopinka,
Lederman and Bryant, supra, at § 2.83; Cross and Tapper on Evidence
(9th ed. 1999), at p. 58; Wigmore on Evidence, vol. 1(Tillers
rev. 1983), at § 13; United States Federal Rule of Evidence 105. Aside from
her cogent dissent in D. (L.E.), supra, which was upheld on
appeal, authority in support of my position comes from the reasons of McLachlin
J. in R. v. Rockey, [1996] 3 S.C.R. 829, at para. 38:

It has long been accepted that
trial judges charging juries on out‑of‑court statements must
instruct them on how they may use the statements — whether as evidence of the
truth of their contents or for some other purpose, such as credit. In this case
the trial judge did not do this. It may be that it was apparent to everyone
in the courtroom that the subsequent statements were tendered on the issue of
consistency, as the majority of the Court of Appeal suggests. Nevertheless, the
usual rule requires this to be stated expressly. [Emphasis added.]

185I can see no reason why hearsay statements about joint acts should be
immune from this most sensible rule. Cook’s statement, assuming its
admissibility, may be used to show the intentions of the declarant only, not
the intentions of the appellant. The jury should have been instructed as
such. As McLachlin J. pointed out in Rockey, juries cannot be trusted
to determine what are proper and improper uses of evidence; indeed, the entire
law of evidence is premised on the notion that relevant, probative evidence
should on occasion be kept from juries because of their potential inability to
assess its weight properly.

186In this appeal, the trial judge did not instruct the jury on the proper
uses of Cook’s statement; in fact, he did the opposite by expressly inviting
the jury to use the evidence to infer the appellant’s intentions. In so doing,
he clearly committed an error of law warranting reversal.

187Finally, I would exclude Cook’s statement as more prejudicial than
probative. The trial judge did not make a finding on the issue of
reliability. His focus was upon the impermissible inferences that the jury
might draw from otherwise admissible hearsay, and he regarded the primary
prejudice to the appellant to be that the jury might infer that he was the type
of person likely to commit insurance fraud. However, as noted above, this was
not the primary source of prejudice.

188The trial judge erred by not considering whether “the prejudicial
effect of the prohibited use of the evidence [i.e., the appellant’s
intentions] overbears its probative value on the permitted use [i.e.,
Cook’s intentions]”: Watt’s Manual of Criminal Evidence (1999), at p.
281 (emphasis in original). The impermissible inferences that
the jury might well have drawn from Cook’s statement are that the appellant was
in the car that followed Cook, that the appellant was alone in the car (since
Cook referred only to the appellant), and that the appellant went with Cook as
part of a plan to lure Cook to a secluded area and kill him. These were the
specific impermissible inferences that the jury might have drawn in this
regard — indeed, they are inferences that the Crown specifically invited
the jury to draw — quite apart from the inferences that they might have drawn
regarding his general criminality. In my view, Twaddle J.A. was correct in
finding that the prejudicial effect of the admission of Cook’s statement
accordingly outweighed the statement’s probative value. The statement ought to
have been excluded on this basis as well: see R. v. Seaboyer, [1991] 2
S.C.R. 577, at pp. 609-11, per McLachlin J.

189I have concluded that Cook’s statement does not fall within the present
intentions exception to the hearsay rule. Earlier, I recognized the conflict
regarding the precise scope of this exception, and noted that the principled
approach requires adopting Wigmore’s requirement that the statement not be made
under circumstances of suspicion. I turn now to this question of the
relationship between the principled approach and the traditional hearsay
exceptions.

(c) Admissibility of Cook’s Statement to
Giesbrecht Under the Principled Approach

(i) Why the Principled Approach Should
Prevail

Previous Hearsay Jurisprudence

190Before turning to the question of whether Cook’s statement to Giesbrecht
might be admissible under the principled approach, I would like to offer some
general observations on the relationship between the principled approach and
the hearsay exceptions. Speaking for this Court in Smith, supra,
at pp. 932-33, Lamer C.J. emphasized that the rules regarding hearsay
admissibility in Canada were changed by the Court’s decision in Khan, supra:

. . . Khan should not be understood as turning on its particular
facts, but, instead, must be seen as a particular expression of the fundamental
principles that underlie the hearsay rule and the exceptions to it. What is
important, in my view, is the departure signalled by Khan from a view of
hearsay characterized by a general prohibition on the reception of such
evidence, subject to a limited number of defined categorical exceptions, and a
movement towards an approach governed by the principles which underlie the rule
and its exceptions alike. . . .

This Court’s decision in Khan, therefore,
signalled an end to the old categorical approach to the admission of hearsay
evidence. Hearsay evidence is now admissible on a principled basis, the
governing principles being the reliability of the evidence, and its necessity.

Similarly, at
p. 930, Lamer C.J. stated:

The decision of this Court in Khan . . . should be understood as
the triumph of a principled analysis over a set of ossified judicially created
categories.

191In R. v. U. (F.J.), [1995] 3 S.C.R. 764, the Court suggested the
need to reconsider the traditional hearsay exceptions in light of the
principled approach established by Khan and Smith. Speaking for
the majority of the Court, Lamer C.J. pointed to the illogical nature of some
of the exceptions, and to the need for principled reform (at para. 20):

Briefly stated, Khan and Smith
announced this Court’s commitment to ensure that the rule against the admission
of hearsay as evidence would be sufficiently flexible to adapt to new
situations. The hearsay rule and its rigidly formulated exceptions had become
a sometimes illogical and frequently confusing series of pigeon-hole
categories. Khan and Smith examined the principles underlying
the hearsay rule to ensure that new developments in the evidentiary treatment
of hearsay would reflect those tenets. [Emphasis added.]

In Khan and Smith, this Court signalled the beginning
of a modern principled framework for defining exceptions to the hearsay rule.
The Court rejected the traditional approach of the common law premised on
rigid, categorical exceptions to the hearsay rule in favour of a more flexible
approach which seeks to give effect to the underlying purposes of the rule.
[Emphasis added.]

192Up to the present, this Court’s application of the principled approach
to hearsay admissibility in practice has involved only expanding the scope of
hearsay admissibility beyond the traditional exceptions. The focus of the
Court’s analysis and commentary has been upon the need to increase the
flexibility of the existing exceptions, and not specifically upon the need to
re-examine the exceptions themselves. However, this case requires that we
examine an exception to the hearsay rule and determine its co-existence with
the principled approach. As I will discuss further, to the extent that the
various exceptions may conflict with the requirements of a principled analysis,
it is the principled analysis that should prevail.

193The applicability of the principled approach to the exclusion as well as
inclusion of evidence is implicitly confirmed by Khan itself. At p. 543
of her reasons for a unanimous panel, McLachlin J. addressed recent
developments in the law with respect to the testimony of child victims of
sexual assault:

These developments underline the need for increased
flexibility in the interpretation of the hearsay rule to permit the admission
in evidence of statements made by children to others about sexual abuse. In so
far as they are tied to the exception to the hearsay rule of spontaneous
declarations, however, they suffer from certain defects. There is no
requirement that resort to the hearsay evidence be necessary. Even where the
evidence of the child might easily be obtained without undue trauma, the Crown
would be able to use hearsay evidence. Nor is there any requirement that the
reliability of the evidence in the particular case be established; hence inherently
unreliable evidence might be admitted. [Emphasis added.]

Thus the Court
in Khan declined simply to enlarge the traditional exceptions because
doing so might have allowed into evidence unnecessary or unreliable evidence,
thereby falling afoul of the principled approach. It therefore makes little
sense to say that the current exceptions need not meet the same standard.

195Questions as to whether and how the traditional hearsay exceptions
should be modified in light of the principled approach have also been discussed
in the academic literature. Some commentators favour reforming the exceptions
to make them an inherent aspect of a logical and coherent approach to hearsay
admissibility based on reliability and necessity: see, e.g., M. Rosenberg, “B.
(K.G.) -- Necessity and Reliability: The New Pigeon-holes” (1993), 19 C.R.
(4th) 69; D. Rowsell, “Necessity and Reliability: What is the Impact of Khan
on the Admissibility of Hearsay in Canada?” (1991), 49 U.T. Fac. L. Rev.
294; E. Then, “Dying Declarations Following Khan and Smith: Are
They Necessarily Reliable?”, in National Criminal LawProgram: Criminal
Evidence (1994), vol. 1, section 6.5; A. L.-T. Choo, Hearsay and
Confrontation in Criminal Trials (1996), at pp. 166-70.

196In “B. (K.G.) -- Necessity and Reliability: The New Pigeon-holes”,
an article published before his appointment to the bench, Marc Rosenberg states
that this Court’s decisions in Khan, Smith, and B. (K.G.)
signify that “it must . . . be open to the courts to revisit any established
exception to determine whether that exception can still be justified on the
basis of necessity and reliability” (p. 71). Rosenberg explains, at pp. 80-81:

[T]he reason which justifies an existing exception may in time be found
to be wanting. The exceptions were created as the courts from time to time
applied common sense and experience, but ideas which seemed reasonable in the
19th century may appear questionable in the late 20th century. As early as
1913 Hamilton L.J. in considering the exception for statements against
pecuniary interest where the circumstantial guarantee of trustworthiness is
said to lie in the fact that persons will not lie to their pecuniary
disadvantage observed that as a reason for admitting hearsay this one was
“sordid and unconvincing” noting that “Men lie for so many reasons and some for
no reason at all; and some tell the truth without thinking about their
pockets”.

197Other writers have been less convinced of the benefits of altering the
traditional hearsay exceptions. Their concerns have generally been focussed upon
the harm that they suggest would result from the complete abolition of the
exceptions, rather than upon the effects of a piecemeal reform of the
exceptions to comply with the principled approach. See, e.g., P. B. Carter,
“Hearsay: Whether and Whither?” (1993), 109 L.Q.R. 573; D. A. R.
Thompson, “The Supreme Court Goes Hunting and Nearly Catches a Hearsay Woozle”
(1995), 37 C.R. (4th) 282.

198The concerns expressed in the academic commentary warrant careful
consideration, and are of assistance in determining how best to rationalize the
traditional exceptions in light of the underlying principles of the rule. In
my view, there are two paramount reasons to reconsider the hearsay exceptions,
namely: first, trial fairness and the integrity of the justice system; and
second, the intellectual coherence of the law of hearsay.

Why the Exceptions Must be Rationalized

199As I have already discussed, a fundamental concern with reliability lies
at the heart of the hearsay rule. By excluding evidence that might produce
unfair verdicts, and by ensuring that litigants will generally have the
opportunity to confront adverse witnesses, the hearsay rule serves as a
cornerstone of a fair justice system.

200In Khan, Smith, and subsequent cases, this Court allowed
the admission of hearsay not fitting within an established exception where it
was sufficiently reliable and necessary to address the traditional hearsay
dangers. However, this concern for reliability and necessity should be no less
present when the hearsay is sought to be introduced under an established
exception. This is particularly true in the criminal context given the
“fundamental principle of justice, protected by the Charter, that the
innocent must not be convicted”: R. v. Leipert, [1997] 1 S.C.R. 281, at
para. 24, quoted in R. v. Mills, [1999] 3 S.C.R. 668, at para. 71. It
would compromise trial fairness, and raise the spectre of wrongful convictions,
if the Crown is allowed to introduce unreliable hearsay against the accused, regardless
of whether it happens to fall within an existing exception.

201In addition to improving trial fairness, bringing the hearsay exceptions
into line with the principled approach will also improve the intellectual
coherence of the law of hearsay. It would seem anomalous to label an approach
“principled” that applies only to the admission of evidence, not its
exclusion. Rationalizing the hearsay exceptions into the principled approach
shows that the former are simply specific manifestations of general principles,
rather than the isolated “pigeon-holes” referred to in U. (F.J.), supra,
at para. 20.

The Continuing Importance of the Existing Exceptions

202Having recognized the primacy of the principled approach, it is
nevertheless important for a court to exercise a certain degree of caution when
reconsidering the traditional exceptions. While the exceptions may need to be
reexamined in light of the principled approach, their complete abolition is not
the answer. Rather, the exceptions continue to play an important role under
the principled approach. Our task therefore is to reconcile the traditional
exceptions with the principled approach.

203One important function that the hearsay exceptions have served has been
to add predictability and certainty to the law of hearsay. In light of the
exceptions, and regardless of how illogical or arbitrary they may be, litigants
can be more or less certain when going into court of the types of issues that
will be relevant in debating admissibility in a particular context, and of the
likelihood that the evidence will indeed be admitted. This certainty has
fostered greater efficiency in the use of court time both at trial and on
appeal, and has facilitated the task of the too frequently overburdened trial judge
who is called upon to rule on hearsay admissibility with speed and considerable
regularity. As suggested by Rosenberg, supra, at p. 75, a complete
abolition of the exceptions and their replacement by the principled approach
standing alone would complicate the judicial task:

[I]t is unfair to simply leave the decision as to the admission of
hearsay completely open-ended, leaving the trial judges without any analytical
tool for determining what is reasonably necessary. To simply define the test
in terms of reliability and necessity is just too vague to be of any practical
use. With all its rigidity and anomalies a hearsay rule consisting of a broad
rule of exclusion with certain well-defined exceptions was relatively
easy to apply. Taking away all of the rules and replacing them with necessity
and reliability, while perhaps not inviting chaos, does make the role of the
trial judge that much more difficult. [Emphasis in original.]

204Second, in addition to serving the utilitarian goals of providing
greater certainty and fostering judicial efficiency, the exceptions have served
an explanatory or educative function, instructing litigants and judges about
the relevant factors to consider in determining whether to admit a particular
type of hearsay evidence, or whether to admit hearsay in a particular
factual context. Different hearsay scenarios by their nature raise
different reliability concerns, and different issues of necessity. The specific
requirements of the individual exceptions have had the useful effect of
focussing attention upon the peculiar factors that make it desirable, or
undesirable, to admit a particular form of out-of-court statement. This should
be no surprise given Lamer C.J.’s statement in Smith, supra, that
the principled approach is “governed by the principles which underlie the
[hearsay] rule and its exceptions alike” (p. 932). Since the principled
approach is implicit in most of the exceptions, they are likely to be strong
evidence of necessity and reliability.

205It is true that there is guidance inherent in the principled approach
itself, which directs a court to gauge whether a particular hearsay statement
is reliable and whether its admission is necessary in the circumstances.
However, the exceptions are more fact-specific and contextually sensitive.
Properly modified to conform to the principled approach, the exceptions are
practical manifestations of the principled approach in concrete and meaningful
form. Indeed, it is precisely to illustrate the form of analysis under the
principled approach that must occur in a particular factual context that this
Court in its recent cases has outlined carefully the type of inquiry that must
occur when dealing with a particular type of hearsay, whether it be the
testimony of a child witness (Khan, supra), a prior inconsistent
statement (B. (K.G.), supra, and U. (F.J.), supra),
or prior testimony (Hawkins, supra). Some commentators have
suggested that the Court’s recent hearsay jurisprudence may accordingly be seen
as creating new hearsay exceptions to supplement the traditional exceptions:
see, e.g., Carter, supra, at p. 579. Perhaps a more accurate
characterization is to say that all of the hearsay “exceptions” should be seen
simply as concrete examples of the practical application of the purpose and
principles of the hearsay rule in a particular context.

206A third important function played by the traditional hearsay exceptions
is that they teach us about the historical and contemporary rationale for
admitting certain forms of hearsay. It has quite properly been noted that some
hearsay exceptions allow for the admission of evidence that is unreliable,
unnecessary, or both. In the interest of fairness for the litigant against whom
it is used, unreliable hearsay evidence should never be admitted. Apart from
that, a review of the traditional exceptions reveals that there are reasons
beyond “pure” necessity why a court might wish to admit reliable hearsay evidence.
This point was addressed by Lamer C.J. in B. (K.G.), at pp. 796-97,
where he explained that the need to permit the admission of certain forms of
hearsay can stem not only from the unavailability of the out-of-court
declarant, but also from the quality of the evidence itself. Lamer C.J. cited
Professor Wigmore’s explanation (Wigmore on Evidence, vol. 5 (Chadbourn
rev. 1974), at p. 253) that some hearsay evidence “may be such that we cannot
expect, again, or at this time, to get evidence of the same value from
the same or other sources” (emphasis in original). Such hearsay may be
admitted, where appropriate, less on the basis of necessity and more on the
basis of “expediency or convenience”. The traditional exceptions are useful,
therefore, because they are instructive as to the types of situations that may
produce hearsay that is the best evidence in the circumstances.

207There are other important functions served by the traditional hearsay
exceptions, but the issues I have referred to are sufficient to illustrate that
it is neither desirable nor necessary to abolish these exceptions outright.
The more appropriate approach is to seek to derive the benefits of certainty,
efficiency, and guidance that the exceptions offer, while adding the benefits
of fairness and logic that the principled approach provides. The task is to
rid the exceptions of their arbitrary aspects, in order to avoid admitting
hearsay evidence that should be excluded.

(ii) Is Cook’s Statement to Giesbrecht
Admissible Under the Principled Approach?

208For much the same reasons why the statement did not meet the
requirements for admissibility under the present intentions exception, I
conclude that the statement is not admissible under the principled approach
either. This should not be particularly surprising -- as I have discussed
above, the traditional exceptions are based on the concepts of reliability and
necessity. While occasionally, as in Khan, supra, a statement
not falling within an existing exception will be admissible under the
principled approach, this will likely be the exception, not the rule.

209The first requirement for admissibility under the principled approach is
reliability. Given my conclusion above that Cook’s statement was made under
“circumstances of suspicion”, it follows that the statement was not reliable.
Nor are there any other circumstantial guarantees of trustworthiness that could
render the statement reliable. Having found that the statement is unreliable,
it is unnecessary to go on to ask whether it was necessary or not. I conclude
that Cook’s statement to Giesbrecht was inadmissible under the principled
approach. Since it does not fall under an existing exception either, for all
the reasons given above, the courts below erred in admitting this evidence.
There being no serious argument that the error was one that could be saved by
the curative provisio, s. 686(1)(b)(iii) of the Criminal Code,
R.S.C., 1985, c. C-46, the appeal must be allowed.

(d) Revisiting the Hearsay Exceptions in
Future Cases

210While the foregoing is perhaps sufficient to dispose of this appeal,
the majority of the arguments both in the court below and before this Court
focussed on the relationship between the principled approach and the
traditional exceptions. Given this, and the substantial controversy among both
lower courts and commentators regarding the appropriate relationship between
the principled approach and the traditional hearsay exceptions, I would like to
offer some general remarks on this issue. I have no doubt that the lower courts
will develop guidelines over time as circumstances warrant.

211I hope from the foregoing that it is clear that the existing exceptions
are a long-standing and important aspect of our law of evidence. I am
cognizant of their important role, and the need for caution in reforming them.
Given their continuing importance, I would expect that in the clear majority of
cases, the presence or absence of a traditional exception will be determinative
of admissibility.

212While Khan, supra, and its progeny have set out the
approach for evidence falling outside a traditional exception, I would note
that evidence falling within a traditional exception is presumptively
admissible. These exceptions traditionally incorporate an inherent reliability
component. For example, testimony in former proceedings is admitted, at least
in part, because many of the traditional dangers associated with hearsay are
not present. As pointed out in Sopinka, Lederman and Bryant, supra, at
pp. 278-79:

. . . a statement which was earlier made under oath, subjected to
cross-examination and admitted as testimony at a former proceeding is received
in a subsequent trial because the dangers underlying hearsay evidence are
absent. [Emphasis added.]

Other
exceptions are based not on negating traditional hearsay dangers, but on the
fact that the statement provides circumstantial guarantees of reliability.
This approach is embodied in recognized exceptions such as dying declarations,
spontaneous utterances, and statements against pecuniary interest.

213All this being said, it is also clear that the logic of the principled
approach demands that it must prevail in situations where it is in conflict
with an existing exception. For example, had there been any doubt in this
appeal whether the present intentions exception required that the statement not
be made under circumstances of suspicion, the principled approach would require
holding that it does now. Hearsay evidence may only be admitted if it is
necessary and reliable, and the traditional exceptions should be interpreted in
a manner consistent with this requirement.

214In some rare cases, it may also be possible under the particular
circumstances of a case for evidence clearly falling within an otherwise valid
exception nonetheless not to meet the principled approach’s requirements of
necessity and reliability. In such a case, the evidence would have to be
excluded. However, I wish to emphasize that these cases will no doubt be unusual,
and that the party challenging the admissibility of evidence falling within a
traditional exception will bear the burden of showing that the evidence should
nevertheless be inadmissible. The trial judge will determine the procedure
(whether by voir dire or otherwise) to determine admissibility under the
principled approach’s requirements of reasonable necessity and reliability.

215In this connection, it is important when examining the reliability of a
statement under the principled approach to distinguish between threshold and
ultimate reliability. Only the former is relevant to admissibility: see Hawkins,
supra, at p. 1084. Again, it is not appropriate in the circumstances of
this appeal to provide an exhaustive catalogue of the factors that may influence
threshold reliability. However, our jurisprudence does provide some guidance
on this subject. Threshold reliability is concerned not with whether the
statement is true or not; that is a question of ultimate reliability. Instead,
it is concerned with whether or not the circumstances surrounding the statement
itself provide circumstantial guarantees of trustworthiness. This could
be because the declarant had no motive to lie (see Khan, supra; Smith,
supra), or because there were safeguards in place such that a lie could
be discovered (see Hawkins, supra; U. (F.J.), supra;
B. (K.G.), supra).

216And indeed, lower courts have recognized that the absence of a motive to
lie is a relevant factor in admitting evidence under the principled approach:
see R. v. L. (J.W.) (1994), 94 C.C.C. (3d) 263 (Ont. C.A.); R. v. Tam
(1995), 100 C.C.C. (3d) 196 (B.C.C.A.); R. v. Rose (1998), 108 B.C.A.C.
221; see also B. P. Archibald, “The Canadian Hearsay Revolution: Is Half a Loaf
Better Than No Loaf at All?” (1999), 25 Queen’s L.J. 1, at p. 34.
Conversely, the presence of a motive to lie may be grounds for exclusion of
evidence under the principled approach. Put another way, it is the role of the
trial judge to determine threshold reliability by satisfying him- or herself
that notwithstanding the absence of the declarant for cross-examination
purposes, the statement possesses sufficient elements of reliability that it
should be passed on to be considered by the trier of fact.

217At the stage of hearsay admissibility the trial judge should not
consider the declarant’s general reputation for truthfulness, nor any prior or
subsequent statements, consistent or not. These factors do not concern the
circumstances of the statement itself. Similarly, I would not consider the
presence of corroborating or conflicting evidence. On this point, I agree with
the Ontario Court of Appeal’s decision in R. v. C. (B.) (1993), 12 O.R.
(3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary,
under the principled approach a court must not invade the province of the trier
of fact and condition admissibility of hearsay on whether the evidence is
ultimately reliable. However, it will need to examine whether the
circumstances in which the statement was made lend sufficient credibility to
allow a finding of threshold reliability.

(4) Admissibility of Cheryl Ball’s Out-of-Court Identification

218The analysis of Cheryl Ball’s identification evidence proceeds in much
the same way as the foregoing analysis of Cook’s statement to Giesbrecht. I
conclude that the statement is hearsay, and that it does not fall within an existing
exception. Since I also conclude that the evidence was inadmissible under the
principled approach, it follows that the trial judge erred in admitting the
evidence.

219Again I will assume for the purposes of analysis the veracity of the
testimony of Constables Madden and MacLeod at trial. They testified that
Cheryl Ball identified the appellant as being a man she had seen talking to
Cook at the Mohawk gas station on the night of the murders, and, according to
Madden, as the man who was also “probably driving the other car”. It is clear
that these statements are hearsay and so are inadmissible unless reliable and
necessary, because the Crown sought to use the statements to show that the
appellant was present at the Mohawk station, thus creating an inference that he
had followed them from the station and was driving the smaller car Cheryl Ball
saw when she left Cook and Weselowski in St. Norbert. The issue before the
trial judge was whether the evidence was admissible pursuant to the “prior
identification” exception to the hearsay rule. The trial judge found that the
exception did apply.

220It is not necessary in this case to review the entirety of the “prior
identification” exception to the hearsay rule. The narrow issue before this
Court is whether hearsay evidence of an out-of-court identification by a trial
witness is admissible where the witness does not testify at trial that she made
the identification. On the particular facts of this appeal, Cheryl Ball
testified at trial that she told police that one of the men in the photographs
she was shown on August 23, 1994 “look[ed] kind of familiar”, but she did not
testify that she had seen the person at the Mohawk gas station or at the wheel
of the car that followed Weselowski’s station wagon to St. Norbert.

221The scope of the “prior identification” exception to the hearsay rule
was recently thoroughly canvassed in the lucid reasons of Doherty J.A. in Tat,
supra. As Doherty J.A. sets out, there are two situations in which
out-of-court statements of identification may be admitted for the truth of
their contents. First, “prior statements identifying or describing the accused
are admissible where the identifying witness identifies the accused at trial”
(pp. 497-98). Second, such statements are admissible “where the identifying
witness is unable to identify the accused at trial, but can testify that he or
she previously gave an accurate description or made an accurate identification”
(p. 500). In the latter circumstance, Doherty J.A. explained, “the identifying
witness may testify to what he or she said or did on those earlier occasions
and those who heard the description given by the witness or witnessed the
identification made by the witness may give evidence of what the witness said
or did” (ibid.).

222In the present case, only the second branch of the “prior
identification” exception could possibly be applicable to permit the admission
of the police testimony under the exception, because Ball did not identify the
appellant in court. However, in my opinion, the requirements of this second
branch are not satisfied in the circumstances. Ball did not testify that she
could not remember whether the appellant was the person whom she identified.
She was not asked to compare the appellant with her recollections about the
person she saw on the night of the murders. Accordingly, the underlying
circumstances of necessity required to trigger the second branch of the
traditional exception did not exist. Even aside from this point, the police
evidence went far beyond the scope of the “prior identification” exception.
Part of the rationale underlying the second branch of the exception is that the
testimony that is being admitted to complement the testimony of the identifying
witness does not truly constitute hearsay. If the witness can at least testify
that at some point she made an accurate identification, then a police officer’s
testimony that he or she observed the identifying witness in the act of
identification is original evidence that the identifying witness did
indeed select a particular person, and that that person is the accused.
However, for this rationale to apply, the identifying witness must confirm that
the person he or she identified in the police officer’s presence was the person
who committed an act that is relevant in the immediate proceedings. The
testimony of the identifying witness may thus have its own hearsay component,
but this issue is beyond the scope of this appeal: see H. Stewart, “Prior
Identifications and Hearsay: A Note on R. v. Tat” (1998), 3 Can.
Crim. L. Rev. 61. The point is that the officer’s testimony should merely
state who the witness identified, once the witness has already testified to the
identification itself, and why the identification is relevant to the case.

223The evidence provided by Constables Madden and MacLeod went beyond
simply asserting that Cheryl Ball identified the accused on August 23, 1994.
Their testimony provided almost the entirety of the narrative underlying the
identification. Of particular importance, as already mentioned, Cheryl Ball
did not testify that the person she pointed to in the photo line-up as being
“familiar” was present at the Mohawk gas station or in the car that followed
the Weselowski station wagon to St. Norbert. All of the links between the act
of identification and the reasons for the identification were provided
by Constables Madden and MacLeod. As Doherty J.A. emphasized in Tat,
the evidence explaining why the identifying witness identified the accused must
come from the identifying witness himself or herself. In his words, at p. 505:
“Absent some evidence connecting the person identified at the line-up to the
crime, I fail to see how identification at the line-up has any relevance to the
issue of identity”. Similar comments were made by Twaddle J.A. below, who
stated (at p. 175) that “[w]here the identifying witness is unable to recall
the prior identification, the situation is the same as if he or she has not
testified. In that scenario, the trier of fact is left with the bald assertion
of the recipient as to the person identified without the ability to
cross-examine the eyewitness on the actual identification”. It follows that
the trial judge erred in admitting the police evidence regarding Ball’s out-of-court
identification under a traditional exception to the hearsay rule.

224The next question, following Khan, supra, and Smith,
supra, is whether the hearsay evidence of Constables Madden and MacLeod
is nonetheless admissible under the principled approach to hearsay
admissibility. Parenthetically, I should mention that since the “prior
identification” exception is not directly brought into play on these facts, I
leave to another day the question of whether the exception requires revisiting
in order to conform to the principled approach.

225In my view, the police testimony was equally inadmissible under the
principled approach. First of all, quite simply, the police hearsay was not
necessary. Cheryl Ball was a witness at trial and could have provided
first-hand evidence, had the Crown chosen to question her on point. That the
Crown chose not to do so is a question of tactics, not a basis for admitting
hearsay evidence to fill the gap. Moreover, there are strong indications that
Cheryl Ball’s identification was unreliable, even if one accepts the evidence
of Constables Madden and MacLeod that Ball told them she saw a man in a car
talking to Cook at the Mohawk gas station. According to Madden’s testimony,
Ball described the person she saw speaking to Cook as having had short hair in
a ponytail, glasses, and no goatee. The black-and-white photocopied photograph
that she pointed to as looking “familiar” showed the appellant with long hair
and a goatee, with no ponytail and no glasses. Moreover, Madden testified that
the appellant had never worn glasses. This inconsistency in the
identification clearly does not meet the threshold of reliability. It is quite
clear that the Constables’ testimony should not have been admitted at trial.

226Before this Court as in the court below, the Crown argued that, even if
the trial judge erred in admitting hearsay evidence regarding Ball’s
out-of-court identification, any prejudice that might otherwise have been
suffered by the appellant as a result was cured by the trial judge’s cautionary
instruction to the jury. The trial judge’s instruction on this point was as
follows:

I think it is of some significance that Cheryl Ball
was not asked if the reason she could identify the individual in photo number 5
of Exhibit 11 was because she had seen a photo, that is, photo number 3 in
Exhibit 10, a week before. I think it is significant that photo number 3 in
Exhibit 10 is the only one, the only photograph of the three people in Exhibit
10 repeated in Exhibit 11. It is significant, I think, that she was not told
that the description she gave of the man she saw talking to Cook did not in
fact fit the description of the man in photograph number 3 of Exhibit 10. It
is significant, I think, as well that, in court, she did not mention Starr by
name and that she was not asked to identify nor did she identify the accused,
Starr, in the dock as being the man she saw at the Mohawk station. I would
tell you, then, that the identification evidence of Mrs. Ball is, to say the
least, extremely frail, and I would express the opinion that it does not link
the accused, Starr, to the deaths of either Weselowski or Cook. However, it is
for you to decide the value of her evidence.

227The majority in the Court of Appeal was of the view that the above
instruction effectively negated any harm that the hearsay evidence of
Constables Madden and MacLeod might have caused. In particular, the majority
found that the evidence was relatively insignificant in the larger context of
the case, because, in its words, “[t]his was not a case that turned on the
issue of identification” (p. 159).

228With respect, I disagree with the Court of Appeal’s assessment of the
harm that may have been caused by the admission of the out-of-court
identification evidence. Constable Madden testified that Cheryl Ball had
stated that the appellant “was the one that she saw at the Mohawk Station and
that he was probably driving the other car” (emphasis added). It is true that
Jodie Giesbrecht’s testimony had also put the appellant at the Mohawk station.
However, according to Constable Madden, Cheryl Ball identified the appellant
not only as being at the Mohawk station, but also as someone who “was probably
driving the other car”. The use of a conjunctive “and” indicates that there
were two distinct elements to this testimony — namely, being at the Mohawk
station, and “probably” being in the other car. The jury could easily
have taken the reference to the “other car” to refer not to the appellant’s
presence at the Mohawk station, but to the second car seen in St. Norbert when
the Balls last saw Cook and Weselowski alive.

229While admittedly the jury could also have taken the “other car”
testimony to refer to the appellant’s presence at the Mohawk station, certainly
both interpretations are possible. The former interpretation would have placed
the appellant at the last place the deceased were seen alive and provided a
crucial gap in the prosecution’s case. While Cheryl Ball clearly stated at
trial that she did not see who was in the other car she saw at St. Norbert, the
entire problem with the Constables’ testimony is that they went far beyond what
Cheryl Ball herself said at trial. Having offered the evidence, the respondent
is now hard pressed to argue the jury would have undoubtedly disregarded it.
Thus, even if, as the trial judge cautioned, the identification evidence had
little weight, there remained the problem of the serious prejudice that may
have been caused to the appellant by its admission. A crucial aspect of the
defence theory in this case is that some unknown other person may have been
involved in the murders. By potentially putting the appellant with the victims
in St. Norbert, the identification evidence could have gone a long way to
assuaging the jury’s concerns about the non-existence of such other persons.
The cautionary instruction was insufficient to remedy the harm caused by the
admission of the evidence.

B. Adequacy
of the Instruction to the Jury on Reasonable Doubt

(1) The Decisions in Lifchus and Bisson

230In its decisions in Lifchus, supra, and R. v. Bisson,
[1998] 1 S.C.R. 306, this Court has recently addressed the appropriate manner
of instructing a jury on the nature of the criminal standard of proof. Cory
J., writing for the full Court in Lifchus, held that it is essential for
jurors to be instructed that the term “beyond a reasonable doubt” has a special
meaning in a criminal trial. He explained that an appropriate jury instruction
on reasonable doubt is a fundamental component of a fair trial, because a jury
might otherwise convict the innocent by finding guilt on the basis of mere
probability, rather than on the basis of proof to a near certainty as is
required in criminal proceedings. In his words, at para. 14:

No matter how exemplary the directions to the
jury may be in every other respect if they are wanting in this aspect the trial
must be lacking in fairness. It is true the term has come echoing down the
centuries in words of deceptive simplicity. Yet jurors must appreciate their
meaning and significance. They must be aware that the standard of proof is
higher than the standard applied in civil actions of proof based upon a balance
of probabilities yet less than proof to an absolute certainty. [Emphasis
added.]

231In Lifchus, Cory J. held that there are certain essential
elements that should be included in any effective jury charge on reasonable
doubt, as well as several instructions that would generally lessen or impair
the effectiveness of such a charge. Cory J. summarized the essential elements
in the following terms, at para. 36:

It should be explained that:

• the standard of proof beyond a reasonable doubt
is inextricably intertwined with that principle fundamental to all criminal
trials, the presumption of innocence;

• the burden of proof rests on the prosecution
throughout the trial and never shifts to the accused;

• a reasonable doubt is not a doubt based upon
sympathy or prejudice;

• rather, it is based upon reason and common
sense;

• it is logically connected to the evidence or
absence of evidence;

• it does not involve proof to an absolute
certainty; it is not proof beyond any doubt nor is it an imaginary or
frivolous doubt; and

• more is required than proof that the accused is
probably guilty -- a jury which concludes only that the accused is probably
guilty must acquit. [Emphasis in original.]

232Cory J. also summarized, at para. 37, certain references to the required
standard of proof that should be avoided:

• describing the term “reasonable doubt” as an
ordinary expression which has no special meaning in the criminal law context;

• inviting jurors to apply to the task before
them the same standard of proof that they apply to important, or even the most
important, decisions in their own lives;

• qualifying the word “doubt” with adjectives
other than “reasonable”, such as “serious”, “substantial” or “haunting”, which
may mislead the jury; and

• instructing jurors that they may convict if
they are “sure” that the accused is guilty, before providing them with a proper
definition as to the meaning of the words “beyond a reasonable doubt”.

233Cory J. stressed that the precise wording of any given jury charge on
reasonable doubt will not necessarily be determinative of its effectiveness at
transmitting the meaning of the term, and so at securing the fairness of the
accused’s trial. A charge must be examined in its entirety to determine
whether the essential elements of a fair and accurate instruction on reasonable
doubt are present and have been properly explained. The question in every case
in which a trial judge’s instructions on reasonable doubt are impugned is
whether there is a reasonable likelihood that the jury was under a
misapprehension as to the correct standard of proof to apply. If the charge,
when read as a whole, could not have placed the jury under a misapprehension as
to the correct standard of proof, then the jury verdict should not be
disturbed: R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758. However, in
Cory J.’s words in Lifchus, at para. 41: “if the charge as a whole gives
rise to the reasonable likelihood that the jury misapprehended the standard of
proof, then as a general rule the verdict will have to be set aside and a new
trial directed”.

234In both Lifchus, supra, and Bisson, supra,
this Court held that the reasonable doubt instruction provided to the jury in
the particular cases created a reasonable likelihood of a misapprehension of
the standard of proof. In Lifchus, the trial judge instructed the jury
on reasonable doubt by referring to the ordinary everyday meaning of the
phrase.

235In finding that the trial judge’s instruction constituted an error in
law justifying a new trial, Cory J. explained that the instruction contained
two central flaws. First, it did not provide a definition of
“reasonable doubt”. Second, it described the words “reasonable doubt” as
“ordinary, every day words” with no specific meaning in the context of a
criminal trial. Cory J. found that these errors were not cured when the jury
charge was viewed as a whole, even though the charge was, in all other
respects, “a model of clarity and conciseness” (para. 44).

236The trial judge in Bisson, supra, explained to the jury
that proof to an absolute certainty was not required, and that a reasonable
doubt was something more than simply a frivolous, capricious, or imaginary
doubt. He then drew an analogy between the standard of proof beyond a
reasonable doubt and the standard of proof used in everyday activities such as
checking the oil in one’s car, emphasizing at some length that there was no
distinction between the two standards. Writing for the Court, Cory J.
explained that a trial judge should avoid providing examples from daily life of
what may constitute a reasonable doubt, for two key reasons. First, everyday
examples are problematic because, almost invariably, they involve the
application of a standard of probability rather than one of proof beyond a reasonable
doubt. Second, examples tend to be applied subjectively, depending upon the
degree of care taken by different jurors prior to making everyday decisions,
whereas the reasonable doubt standard is a single, objective, and exacting
standard of proof.

237Before turning to examine the charge to the jury in the present appeal,
I would like to emphasize that in Lifchus and Bisson, we set out
to improve the existing standard for instructions on reasonable doubt. This
was not intended to suggest that a new trial is warranted for all previous
convictions obtained following jury charges that were not in strict compliance
with every aspect of Lifchus and Bisson. To the contrary, as
Cory J. made clear in Lifchus, supra, at para. 40, there is no
“magic incantation”. A court reviewing a pre-Lifchus jury charge must
examine it to make sure that it was in substantial compliance with the
principles set out in that case.

(2) Inadequacy of the Reasonable Doubt Charge
in This Case

238It should be pointed out that the trial judge in the present appeal,
like the trial judge in Bisson, supra, gave his charge to the
jury without the benefit of the decision of this Court in Lifchus.
However, I agree with Twaddle J.A. that the reasonable doubt instruction given
in this case falls prey to many of the same difficulties outlined in Lifchus,
and likely misled the jury as to the content of the criminal standard of
proof. For ease of reference, I will set out again the relevant portion of the
charge in this case:

It is rarely possible to prove anything with absolute certainty and so
the burden of proof on the Crown is only to prove the guilt of the accused
beyond reasonable doubt. What, then, is proof beyond a reasonable doubt?

The words “reasonable doubt” are used in their
everyday, ordinary sense and not as a legal term having some special
connotation. The words have no magic meaning that is peculiar to the law. A
reasonable doubt is an honest, fair doubt, based upon reason and common sense.
It is a real doubt, not an imaginary or frivolous one resting on speculation or
guess rather than upon the evidence you heard in this courtroom.

So you can see, the words “reasonable doubt” are
ordinary words we use in our everyday language. So if you can say, I am
satisfied beyond a reasonable doubt, the Crown has met the onus upon it. If
you cannot say those words -- if you cannot say, I am satisfied beyond a
reasonable doubt, the Crown has not met the onus on it, and the accused is
entitled to have your doubt resolved in his favour.

239The key difficulty with this instruction is that it was not made clear
to the jury that the Crown was required to do more than prove the appellant’s
guilt on a balance of probabilities. The trial judge told the jury that they
could convict on the basis of something less than absolute certainty of guilt,
but did not explain, in essence, how much less. In addition, rather than
telling the jury that the words “reasonable doubt” have a specific meaning in
the legal context, the trial judge expressly instructed the jury that the words
have no “special connotation” and “no magic meaning that is peculiar to the
law”. By asserting that absolute certainty was not required, and then linking
the standard of proof to the “ordinary everyday” meaning of the words
“reasonable doubt”, the trial judge could easily have been understood by the
jury as asserting a probability standard as the applicable standard of proof.

240The trial judge did comply with some of the requirements discussed in Lifchus,
supra. He explained that a reasonable doubt is not an imaginary or
frivolous doubt resting on speculation or guess, and that a reasonable doubt is
a real doubt based on reason and common sense upon a review of the evidence.
He also explained, as mentioned, that the standard of proof beyond a reasonable
doubt does not involve proof to an absolute certainty. However, the trial
judge’s adherence to these requirements would have benefited primarily the
Crown, not the appellant.

241In the present case, the trial judge did refer to the Crown’s onus and
to the presumption of innocence, and he stated that the appellant should
receive the benefit of any reasonable doubt. The error in the charge is that
the jury was not told how a reasonable doubt is to be defined. As was
emphasized repeatedly in Lifchus and again in Bisson, a jury must
be instructed that the standard of proof in a criminal trial is higher than the
probability standard used in making everyday decisions and in civil trials.
Indeed, it is this very requirement to go beyond probability that meshes the
standard of proof in criminal cases with the presumption of innocence and the
Crown’s onus. However, as Cory J. explained in these earlier decisions, it is
generally inappropriate to define the meaning of the term “reasonable doubt”
through examples from daily life, through the use of synonyms, or through
analogy to moral choices. The criminal standard of proof has a special
significance unique to the legal process. It is an exacting standard of proof
rarely encountered in everyday life, and there is no universally intelligible
illustration of the concept, such as the scales of justice with respect to the
balance of probabilities standard. Unlike absolute certainty or the balance of
probabilities, reasonable doubt is not an easily quantifiable standard. It
cannot be measured or described by analogy. It must be explained. However,
precisely because it is not quantifiable, it is difficult to explain.

242In my view, an effective way to define the reasonable doubt standard for
a jury is to explain that it falls much closer to absolute certainty than to
proof on a balance of probabilities. As stated in Lifchus, a trial
judge is required to explain that something less than absolute certainty is
required, and that something more than probable guilt is required, in order for
the jury to convict. Both of these alternative standards are fairly and easily
comprehensible. It will be of great assistance for a jury if the trial judge
situates the reasonable doubt standard appropriately between these two
standards. The additional instructions to the jury set out in Lifchus as
to the meaning and appropriate manner of determining the existence of a
reasonable doubt serve to define the space between absolute certainty and proof
beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A.
in the court below, when he said, at p. 177:

If standards of proof were marked on a measure,
proof “beyond reasonable doubt” would lie much closer to “absolute certainty”
than to “a balance of probabilities”. Just as a judge has a duty to instruct
the jury that absolute certainty is not required, he or she has a duty, in my
view, to instruct the jury that the criminal standard is more than a
probability. The words he or she uses to convey this idea are of no
significance, but the idea itself must be conveyed....

243In the appellant’s case, with respect, the trial judge did not give
instructions that could be construed as having located the reasonable doubt
standard above the probability standard. Not only was the jury not told that
something more than probability was required in order to convict, but nearly
all of the instructions they were given (i.e., less than absolute certainty
required, ordinary everyday words, no special meaning, more than a frivolous
doubt required) weakened the content of the reasonable doubt standard in such a
manner as to suggest that probability was indeed the requisite standard of
proof. In this regard, the reasonable doubt instruction in the appellant’s
case cannot be meaningfully distinguished from the impugned instructions in Lifchus
and Bisson. The reasonable likelihood that the jury applied the wrong
standard of proof raises a realistic possibility that the appellant’s
convictions constitute a miscarriage of justice. While obviously a mistake in
the charge will not always be fatal, at no point did the instructions in this
case cure the mistake. The fact that the trial judge repeatedly stated that
the prosecution must prove guilt beyond a reasonable doubt is no cure given his
failure to ever define reasonable doubt correctly. To hold otherwise would
eviscerate the holdings of Lifchus and Bisson. I reach this
finding notwithstanding the fact that, like the jury charge in Lifchus
when read as a whole, the jury charge in the present case was largely a model
of fairness to the accused. The fact that other elements of the charge were
fair to the accused cannot eliminate the prejudice caused by the improper
instructions. Thus I conclude that there was not substantial compliance with
the Lifchus principles. I would therefore allow the appeal on this
ground as well.

244I note that, appropriately, the respondent has not seriously attempted
to apply the curative proviso contained in s. 686(1)(b)(iii) of the Criminal
Code.

VI. Disposition

245The appeal is allowed, the judgment of the Court of Appeal is set aside,
and a new trial is directed.